Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF028841, Albert J. Wojcik, Judge.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, and Heidi T. Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI, J.
Defendant Jose Avila Zaragoza molested his two granddaughters from 1998 until 2002. He was convicted of six counts of committing forcible lewd acts against both of the girls and of the special allegation that he committed lewd acts against multiple victims.
Defendant makes three claims on appeal:
1. He should have been prosecuted under Penal Code section 288.5, rather than five separate counts of violating section 288, subdivision (b)(1).
2. Evidence Code section 1108 is unconstitutional, and it was error to instruct the jury with CALJIC No. 2.50.01.
3. Instruction to the jury that it need not find motive as an element of the crimes reduced the People’s burden of proof on the charged crimes to less than beyond a reasonable doubt.
We affirm the judgment.
I
PROCEDURAL BACKGROUND
Defendant was charged with nine counts of committing lewd and lascivious acts against three separate children under the age of 14 (Jane Does 1, 2, and 3) through the use of force, violence, duress, menace or fear. (Pen. Code, § 288, subd. (b)(1).) It was further alleged pursuant to section 667.61, subdivision (e)(5) that he engaged in these acts with multiple victims.
All further statutory references are to the Penal Code unless otherwise indicated.
The two charges that involved Jane Doe 3 were dismissed prior to trial. Defendant was found guilty of committing six counts of forcible lewd acts and of the allegation that he committed his crimes against multiple victims. The jury found defendant not guilty of one of the forcible lewd acts.
Defendant was sentenced to 15 years to life on each of the six counts of forcible lewd acts. They were all ordered to run consecutive pursuant to section 667.61. Defendant received a total prison sentence of 90 years to life.
II
FACTUAL BACKGROUND
A. People’s Case-in-Chief
1. Offenses against Jane Does1 and 2
Jane Doe 1 was born in 1992 and was 17 years old at the time of trial. Jane Doe 2 was born in 1997 and was 12 years old at the time of trial. Defendant was their biological grandfather.
When Doe 1 was five years old, her mother, G.M., asked her to take the trash outside to the garbage can near their apartment building in Riverside. Defendant offered to help her. After they dropped off the trash, defendant picked her up and put her legs over his shoulders. She was wearing a dress. He put his face into her vagina and licked her over her underwear. Doe 1 told defendant that what he was doing was bad and that Jesus was watching them. Defendant responded, “No, Jesus can’t see us.” Doe 1 hit him in the head until he let her down.
Another time, defendant and Doe 1 were sitting on the couch next to each other covered with a blanket. G. was sitting on a nearby recliner. Defendant moved his hand up Doe 1’s leg, rubbing her leg and trying to touch her vagina. Doe 1 kept moving his hand down and whispering to him to stop. Doe 1 got up and went into the bathroom. G. followed her and told Doe 1 that she had seen something. Doe 1 admitted that defendant had touched her on her private parts.
G. told Doe 1’s father, J.A., and defendant’s daughter, M.A. M. was crying and angry after she was told what happened to Doe 1. Defendant left, and Doe 1 did not see him for about two years.
J.A. is defendant’s son.
Throughout the trial, M.A. is referred to by other witnesses by her middle name, J. We will refer to her as M. to avoid confusion with her brother, J.
J. did not recall that M. was present and told about the acts committed by defendant.
When Doe 1 was about seven years old, she and her family started going to defendant’s home in Hemet. M. and J. would take Does 1 and 2 because G. did not want to be around defendant. G. told J. and M. to keep an eye on defendant around the girls. J. and G. eventually separated, and J. lived in Mexico from the time Doe 1 was nine years old until she was 13 years old. Once J. left the country, M. continued to take Does 1 and 2 to defendant’s house.
Each time Doe 1 went to defendant’s house, he would greet her by hugging her close and holding her on her “butt.” M. sometimes had to work, so Does 1 and 2 stayed the night at defendant’s house.
One night, when Does 1 and 2 were falling asleep, defendant said to Doe 1, “Oh, I’ll come back later.” In the middle of the night, defendant came to where Doe 1 was sleeping. Everyone else in the house was asleep. Defendant started kissing Doe 1 and at some point put his tongue in her mouth. He put his hands underneath her blanket and touched her chest area. Doe 1 told him no and tried to push his hand away from her. Doe 2 started to wake up, so defendant left. Doe 1 was afraid and did not tell anyone.
The next day, defendant told Doe 1 what had happened was nothing and no one would believe her if she told anyone. While they were having this conversation, defendant put his arm around her and stuck his hand down her pants. He touched her vagina beneath her underwear. Doe 1 tried to push him off but he was too strong.
On another occasion, while she was visiting defendant’s house, he picked her up and put his hand down the back of her pants. He reached around and touched her vagina. Doe 1 tried to push him off, but again he was too strong.
Defendant stopped touching Doe 1 when she was 13 or 14 years old. There were other occasions when defendant tried to kiss her and touch her, but she did not recall the specifics of those instances. Doe 1 never told her parents because she thought no one would believe her. When Doe 1 was 11 years old, she recalled telling M. that defendant had touched her and that defendant was also touching Doe 2. M. pushed Doe 1’s face, asked her how she could say these things about M.’s, father, and said she did not believe her.
Defendant started touching Doe 2 when she was about four and a half years old. Doe 2 was afraid to go to his house because she was afraid of what would happen. Doe 2 recalled that she was in the living room at defendant’s house in Hemet with defendant. Defendant told Doe 2 to lie down on the couch. He then rubbed her vagina over her clothes. Doe 2 estimated that he rubbed her vagina area for five or 10 minutes. He stopped when Doe 1 came into the room.
When Doe 2 was six or seven years old, she recalled defendant touching her on the buttocks in a swimming pool. Doe 2 thought that defendant was drinking when he did these things to her. She did not say anything to defendant because she was afraid he would yell at her. Doe 2 thought that no one would believe her if she told because she observed M. hit Doe 1 for talking about it.
Doe 2 noted that there were many other times she went to defendant’s house and he touched her, but she could not recall the details. The last time defendant touched her was when she was about to turn eight. Defendant never touched Doe 2 under her clothes. She did recall that defendant kissed her one time and put his tongue in her mouth. Each time that defendant touched her, he held her down with his arm, and she could not get up.
When she was 16 years old, Doe 1 finally told J. that defendant had molested her. J., Doe 1 and another girl, whom Doe 1 claimed to be a friend, went to the beach. It became apparent to J. during the day that Doe 1 and the other girl were in a romantic relationship. When they got home, Doe 1 admitted to J. that she was homosexual, and he became angry. J. yelled at her and told her she was a disgrace to the family. Doe 1 told him that it was because of what defendant did to her that caused her to not trust men. The police were called even though Doe 1 begged her family not to call them. Doe 2 was relieved that Doe 1 finally told their parents and the police were involved.
Hemet Police Detective Josiah Douglas was assigned the case. He interviewed Doe 1 and also observed an interview conducted by another person with Doe 2. Based on the information gained from these interviews, Detective Douglas set up a pretext phone call between defendant and Doe 1 and then interviewed defendant.
Two pretext phone calls between Doe 1 and defendant were recorded. In the first phone call, defendant was surprised to hear from Doe 1 since she had not called in over a year. Defendant acknowledged that Doe 1 did not like him. Doe 1 said to defendant that she was uncomfortable talking to him because “of what happened.” Defendant apologized to Doe 1 for things he had done in the past although he did not admit to any specific acts of abuse. Doe 1 then advised defendant that J. wanted her to call him, but she was uncomfortable and did not want to tell J. what had happened. Defendant responded, “[N]o one also needs to know it because well those are things that I, well have been forgotten, right or what? For me everything is forgotten.”
In the second call, Doe 1 told defendant that she wanted him in her life but as a grandfather. Defendant again apologized but did not reference any specific acts. Defendant never denied that he touched her.
Defendant was interviewed on July 30, 2009, at the Hemet police department. Defendant initially stated that he did not remember touching the girls because he was mostly drunk during that time period. He never acted surprised or astonished that the girls were making these allegations. He claimed that he apologized to Doe 1 in the phone call for an incident when she was eight or nine years old and he accidentally touched her breast.
2. Prior offenses against Doe 3
M. babysat Jane Doe 3 when Doe 3 was five or six years old and in the first grade. At the time that M. was babysitting her, M. lived with defendant on occasion. When Doe 3 was alone with defendant, he would touch her breasts and vagina over and under her clothes. Sometime when she was between eight and 10 years old, he put his fingers inside her vagina. Defendant also had Doe 3 put her hand on his penis, and he would put his hand over hers, making her masturbate him.
On another occasion, when she was nine or 10 years old, she was wearing a dress with no underwear. Defendant put her on top of the washing machine and then took his penis out of his underwear. Doe 3 recalled that he attempted to have sexual intercourse with her but did not recall if his penis actually went inside her vagina. Either M. or defendant’s wife walked in, so he stopped. Defendant had also tried to kiss her. Doe 3 was not aware at the time defendant did these things that they were wrong. In 1994 or 1995, Doe 3 was given a book by her mother that discussed sexual abuse, and she realized that defendant had been improperly touching her. Doe 3 told her mother what defendant had done, and they went to the police station. No criminal proceedings were held regarding the allegations.
B. Defense
Defendant testified on his own behalf. He insisted that Does 1 and 2 were lying because of J. Defendant had been a difficult father to J., and J. resented it. Defendant had been hard on J. because J. used drugs and was with “many women.” Defendant also claimed that Does 1 and 2 had been in Mexico with J. during the time that they alleged some of the molestations occurred.
Defendant indicated that he may have accidentally touched Doe 1 once when he was drunk, and it was for that possible act that he had apologized to her. Defendant had never touched Doe 2. He denied that Does 1 and 2 ever stayed the night at his house. When asked about Doe 3’s accusations, defendant responded that it was a conspiracy and that he could not remember.
M. also testified for defendant and claimed he had never acted inappropriately with Does 1 and 2. She did not know of the accusations of abuse.
III
PENAL CODE SECTION 288.5Defendant contends that the People were required to prosecute him under section 288.5 instead of charging him with five separate counts of violating section 288, subdivision (b)(1) for the allegations made by Doe 1 because the more specific statute of section 288.5 precluded multiple convictions of individual lewd conduct.
In some circumstances, prosecution under a general criminal statute may be precluded because a more specific criminal prohibition applies to the criminal act in question. (See In re Williamson (1954) 43 Cal.2d 651, 654; People v. Gilbert (1969) 1 Cal.3d 475, 479-480.)
Section 288.5 provides in relevant part as follows: “(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years..., or three or more acts of lewd or lascivious conduct under Section 288, with a child under the age of 14 years... is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years. [¶] (b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred[, ] not on which acts constitute the requisite number.” Section 288, subdivisions (a) and (b)(1) provide, in pertinent part, for a conviction against “any person who willfully and lewdly commits any or lascivious act” upon a child who is under the age of 14 years, “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child” and commits such act “by use of force, violence, duress, menace, or fear of immediate and unlawful injury on the victim or another person....”
Section 288.5 was enacted in direct response to People v. Van Hoek (1988) 200 Cal.App.3d 811, superseded by statute as stated in People v. Higgins (1992) 5 Cal.App.4th 1052, in which the Court of Appeal reversed seven counts of molestation committed by a father against his daughter over a 10-year period. In Van Hoek, the victim could remember distinctly three incidents of molestation but could not tie the events to any particular date, time, or residence. She also testified that the molestations went on for a number of years, and testified to the approximate frequency of the molestations. (Id. at pp. 813-814.) The Court of Appeal held that, in the absence of any corroborating evidence, the “generic and amorphous testimony” of the child victim was insufficient to give the defendant notice of the charges he must defend, and the vagueness of the charges impaired his ability to present a defense. (Id. at pp. 814, 818.) Because the prosecutor had neither charged nor proven a specific offense, the Van Hoek court reversed the convictions. (Id. at p. 818.)
In People v. Hord (1993) 15 Cal.App.4th 711, the court explained that section 288.5 was enacted in 1989 in reaction to Van Hoek. It noted that the Legislature’s “purpose was clear and expressly stated.” (Hord, at p. 718.) It enacted section 288.5 “to provide additional protection for children subjected to continuing sexual abuse and certain punishment for persons referred to as ‘resident child molesters’ by establishing a new crime of continuing sexual abuse of a child under circumstances where there have been repeated acts of molestation over a period of time, and the perpetrator either resides with or has recurring access to the child.” (Hord, at p. 719.)
Then, in 1990, after the enactment of section 288.5, the California Supreme Court decided People v. Jones (1990) 51 Cal.3d 294, in which it disapproved Van Hoek and other cases that followed Van Hoek. (Jones, at p. 321.) The Supreme Court there rejected the defendant’s due process claim concerning so-called “generic” evidence. It concluded that testimony regarding repetitive violations “outlines a series of specific, albeit undifferentiated, incidents, each of which amounts to a separate offense, and each of which could support a separate criminal sanction.” (Jones, at p. 314.) It also stated that sufficient evidence supports convictions for multiple acts of molestation if the victim describes the acts, the number of acts, and the general time period. “Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim’s testimony, but are not essential to sustain a conviction.” (Id. at p. 316.)
Based on this history, the Hord court explained why the rule of prosecution under a specific rather than generic statute does not apply to sections 288 and 288.5: “‘The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent.’ [Citation.] The Legislature’s intent in passing section 288.5 was not to enact a specific statute to apply in lieu of a general statute. The intent was to enact a statute for an area which the Legislature believed was not covered by any other law. That this statute’s necessity was nullified by the Jones decision does not transform this statute into a specific statute under the Williamson rule since this was clearly not the Legislature’s intent at the time of the enactment.” (People v. Hord, supra, 15 Cal.App.4th at p. 720, fn. omitted.)
Defendant acknowledges the decision in Hord but asks this court not to follow the decision. However, other courts have made the same findings as Hord. (See e.g., People v. Johnson (1995) 40 Cal.App.4th 24, 26 [“[t]he People, however, are not required to prosecute under section 288.5 in order to gain a conviction against a resident child molester even when the evidence is based on ‘generic testimony’”]; People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1581 [“[s]ection 288.5 provides a vehicle for prosecuting resident child molesters if specific acts of sexual abuse at a particular time cannot be proven. [Citation.] It is not, nor was it intended to be, a limit on prosecutorial discretion in determining how a particular defendant is to be charged”].) We see no reason to depart from these cases.
Moreover, here there was ample evidence presented that supported the five separate counts of forcible lewd acts. Doe 1 detailed five specific instances when defendant touched her to support the separate charges. In closing argument, the People referred to the specific acts, which it argued included the two incidents when he touched her on the couch under the blanket and his touching her when they took out the trash. Further, on another occasion, he put his tongue in her mouth and rubbed her breasts in the middle of the night. The following day he touched her again on the vagina. Finally, he touched her while they were in the kitchen by reaching his hand down her pants and touching her vagina. These instances were all supported by Doe 1’s testimony, and Doe 1 provided her age at the time of the incidents and testified that they occurred in Riverside and Hemet.
Although the jurors had questions during deliberations on how they must find the five instances of lewd conduct, defendant does not make an argument that the trial court erroneously responded to those questions or that the evidence in this case was insufficient to support the charges.
During deliberations, the jury had the following question: “As to counts 1-5 [d]o the 5 charges relate (one to one) to the 5 specific examples sited [sic] by Jane Doe 1 or are they just examples of an on-going event? Some of the examples happened in the same year which only seems to satisfy 1 charge.” The trial court responded in writing to the jury, “If Jane Doe 1 testified that specific acts, constituting the crimes alleged, occurred a specific number of times, sufficiently describing what occurred, on, or near certain dates, or, if Jane Doe testified that multiple sufficiently described act, or acts, occurred, constituting the crimes alleged, occurred over several periods of time, and if you all agree as to all of the acts, comprising the crime, or crimes, and if you are convinced of defendant’s guilt beyond a reasonable doubt, as to each element of the crime pertaining to the act, or acts, as agreed upon by all, you may then find defendant guilty or the crime or crimes set forth in the Count, or Counts, as agreed upon by you.”
Based on the evidence, there were five specific instances of misconduct detailed with sufficient clarity by Doe 1 to support the five separate charges. The People were therefore not precluded from charging and convicting defendant of five counts of violating section 288, subdivision (b)(1), rather than one count of violating section 288.5.
IV
EVIDENCE CODE SECTION 1108Defendant claims that his right to due process under the Fifth and Fourteenth Amendments was violated by the admission of Doe 3’s testimony because Evidence Code section 1108, which allows the admission of propensity evidence, is unconstitutional. Further, he claims that the trial court erred by instructing the jury with CALJIC No. 2.50.01.
A. Analysis
Defendant was charged in the second amended information with two counts of committing forcible lewd acts against Doe 3. The People sought to amend the charges to forcible rape (Pen. Code, § 269), but that request was denied by the trial court. The People thereafter moved to have the two charges dismissed, which was granted. The People then requested that the evidence of acts against Doe 3 be admitted under Evidence Code section 1108. Defendant argued the evidence should not be admitted as there was not an opportunity to properly voir dire the jury on charges of rape. The trial court admitted the evidence under Evidence Code section 1108, finding, “[B]ased on the charges before this jury, I don’t believe that the probative value of this 1108 rape-type evidence, I don’t believe... the prejudice would substantially outweigh the probative value. And based upon the charges, I don’t see where that would tend to inflame the jurors or would create any great emotional outcry against the defendant.”
Defendant acknowledges that our Supreme Court has rejected a due process challenge to Evidence Code section 1108. “[W]e think the trial court’s discretion to exclude propensity evidence under [Evidence Code] section 352 saves [Evidence Code] section 1108 from defendant’s due process challenge.” (People v. Falsetta (1999) 21 Cal.4th 903, 917.) Defendant argues that the reasoning in Falsetta is flawed but recognizes that if we conclude Falsetta controls the issue, he is presenting the issue only to preserve it for further review. We are bound by the Supreme Court’s ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) No further discussion of defendant’s claim is required.
2. Evidence Code section 1108 instructions
Defendant contends that the trial court erred by instructing the jury with CALJIC No. 2.50.01 because (1) instructing the jury that they can infer guilt based on a finding of criminal disposition violates his rights to due process; and (2) the jury was advised that the finding of criminal disposition only need be proved by a preponderance of the evidence.
We note that defendant never objected to the instructions given in the trial court. However, since in the instant argument and the following argument he claims that his substantial rights are implicated, we can review his claims. (§ 1259; People v. Smithey (1999) 20 Cal.4th 936, 976 fn. 7.)
During discussion of the instructions, defendant did not have any objection to the trial court giving CALJIC Nos. 2.50.01, 2.50.1, and 2.50.2. The jury was instructed with CALJIC No. 2.50.01 as follows: “Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in the case. [¶] ‘Sexual offense’ means a crime under the laws of a state or of the United States that involves any of the following: [¶] Any... conduct made criminal by Penal Code section 288(b)(1), and 288 (a), the elements of these crimes are set forth elsewhere in these instructions; [¶] Contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person. [¶] If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crimes of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. If you determine an inference can properly be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. [¶] Unless you are otherwise instructed, you must not consider this evidence for any other purpose.”
The jury was also instructed with CALJIC No. 2.50.1 as follows: “Within the meaning of the preceding instruction, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed crimes of sexual offenses other than those for which he is on trial. [¶] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that the defendant committed the other crimes or sexual offenses. [¶] If you find other crimes were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged or any included crime in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.” Preponderance of the evidence was defined by the trial court as, “evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who has the burden of proving it.”
As defendant acknowledges, the California Supreme Court has approved the language of CALJIC No. 2.50.01, but again, defendant argues it was wrongly decided. In People v. Reliford (2003) 29 Cal.4th 1007, the Supreme Court rejected the contention that instructing a jury that they could find the prior offenses by a preponderance of the evidence lessened the People’s burden of proof on the charged offenses. (Id. at p. 1016 [“[w]e do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior sexual offense”].) The court also rejected an argument similar to defendant’s that, based on the instruction, if the jury found the defendant guilty of the prior offenses, it relied on this alone to convict him of the current offenses. (Id. at pp. 1013-1015.) Once again we are bound by the Supreme Court’s decision. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Defendant provides no new argument in his brief. As such, we reject his claim.
V
MOTIVE INSTRUCTION
Defendant contends that because the charges required the jury to decide that he possessed a specific sexual intent when he was touching Does 1 and 2, instructing the jury that the People did not have to prove motive undercut their burden of proof.
The trial court instructed the jury with CALJIC No. 2.51 as follows: “Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.” The jury was also instructed that “[a] ‘lewd and lascivious act’ is defined as any touching of the body of a child under the age of 14 years with the specific intent to arouse, appeal to or gratify the sexual desires of either party.”
Defendant essentially argues that the jury confused motive with intent.
Our Supreme Court has held that the terms “motive” and “intent” are not synonymous. (People v. Hillhouse (2002) 27 Cal.4th 469, 504.) “Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice.” (Ibid.) In People v. Cash (2002) 28 Cal.4th 703, a case involving a robbery-murder special circumstance, the Supreme Court held that CALJIC No. 2.51 did not relieve the prosecution of its burden to prove the defendant possessed the intent to rob the victim when he killed him. (Cash, at pp. 738-739.) As the court explained, “The trial court instructed the jury that to find the existence of the robbery-murder special circumstance, it ‘must find the murder was committed in order to carry out or to advance the commission of the crime of robbery, ’ and that ‘the special circumstance is not present if the defendant’s intent is to kill and the related felony of robbery is merely incidental to the murder.’ In sum, the instructions as a whole did not use the terms ‘motive’ and ‘intent’ interchangeably, and therefore there is no reasonable likelihood the jury understood those terms to be synonymous. [Citation.]” (Id. at p. 739.)
The same holds true in this case. The jury was instructed that it could not convict defendant of committing a lewd and lascivious act unless it found he possessed the requisite intent. None of the instructions equated motive with intent. Defendant offers no basis for concluding the jury understood the terms “motive” and “intent” to be synonymous.
Defendant relies on People v. Maurer (1995) 32 Cal.App.4th 1121, but it is inapposite. In Maurer, the defendant was charged with misdemeanor child annoyance (§ 647.6), a crime requiring proof the defendant’s act was “‘motivated by an unnatural or abnormal sexual interest....’” (Maurer, at p. 1125-1126.) The jury was also instructed that, under CALJIC No. 2.51, motive was not an element of the crime charged. (Maurer, at p. 1126.) The court held that the trial court erred by not excluding the section 647.6 offenses from the motive instruction of CALJIC No. 2.51. (Maurer, at p. 1127.) The court concluded that the distinction between the words “motivation” and “motive” was of little practical significance and that the two instructions essentially presented the jury with “conflicting terms.” (Ibid.) The same cannot be said of the terms “intent” and “motive.” The reasoning in Maurer clearly is not applicable to the instant case.
We conclude the instructions here as a whole did not refer to motive and intent interchangeably, and there was no reasonable likelihood the jury understood the terms to be synonymous. As such, instruction to the jury that it did not need to determine motive did not lessen the People’s burden of proof.
VI
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P.J.CODRINGTON J.
The jurors sent a second question: “Counts 1-2-3 have specific incidents tied to specific dates. Counts 4&5 do not. The jury is undecided as to the outcome of 4&5 because there are not specific incidents tied to charges 4&5. Is the testimony from Jane Doe #1 stating that molestation occurred almost every time she went to the defendant[’]s house sufficient to render a guilty verdict?” The trial court responded in writing, “Yes, if the elements are proved beyond a reasonable doubt.” (Capitalization omitted.)