Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Super. Ct. No. FSB901243, Kyle S. Brodie, Judge.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
MILLER, J.
Defendant and appellant Ramon Mariano Aragon, Jr., appeals from a jury conviction for sexual offenses against three separate victims. He argues his conviction on one of the offenses should be reversed, because the trial court had a duty but failed to give a unanimity instruction. In addition, he argues his right to due process was violated because the trial court failed to conduct a hearing and make a specific inquiry pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), when it became aware defendant was dissatisfied with counsel’s representation.
FACTUAL AND PROCEDURAL HISTORY
Defendant was charged in counts 1 through 3 with forcible lewd acts upon a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1)); in count 4 with forceful sexual penetration by a foreign object (§ 289, subdivision (a)(1)); and in counts 5 and 6 with lewd acts on a child under the age of 14 years (§ 288, subd. (a)). The victims of these offenses were defendant’s sisters: V.A. (born February 1995); S.A. (born October 1997), and H.A. (born January 2000). A fourth sister, K.A., the oldest (born May 1992), testified at trial as a witness, but was not a victim of any of the charged offenses. Besides defendant, there were two other brothers; defendant was the oldest brother.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant does not dispute that each victim was under the age of 14 when the offenses occurred; the dates of the offenses are not relevant to the issues raised on appeal.
During the relevant time period, the children originally lived with their father. Their mother did not live with them and was not very involved in their lives. The children were unsupervised in the home while the father was at work. The father went to jail for hitting one of defendant’s younger brothers, so the children then went to live with an aunt and uncle. The uncle testified the children were not left alone in the house except for one time when he and his wife went out together for about three hours. During that time, there were several phone calls from the children, because they were bickering. V.A. testified the children were unsupervised at the aunt and uncle’s house, because the aunt was always drunk.
After about 10 and a half months, the children were removed by Child Protective Services, because the uncle had not finished a marriage counseling class he was required to take. After their father was released from jail, the children had overnight visits with him and went back to live with him for a short time. When she was 14 years old and in the custody of Child Protective Services, V.A. revealed she had been sexually abused by defendant, and the sisters were then interviewed by a specialist at the Children’s Assessment Center (CAC).
The prosecutor identified V.A. as the victim of the most serious offenses in counts 1 through 4. At the time of trial, V.A. was 14 years old. She told the jury about several incidents of sexual molestation by defendant from the ages of 11 through 13. Some of the incidents took place while she was living with her father, and others took place while she was living with her aunt and uncle. The record indicates V.A. not only had a very difficult time testifying, she was sometimes confused and had trouble recalling and distinguishing the details of the various incidents and where they took place. Her testimony suggests she may have been molested by defendant more than the four times charged in the information. She testified defendant raped her three different times, and during one of these incidents, he also put his finger in her vagina. She also said defendant used threats and tied her hands with duct tape to gain her compliance. Her testimony was only partially consistent with the information she revealed during her interview at the CAC. Although she told the interviewer she had been raped by defendant three times, the details of the incidents were not entirely consistent with her trial testimony.
In the defense case, V.A. was called as a witness and impeached with testimony concerning her mental health. The defense also challenged V.A.’s credibility with testimony indicating she had made other allegations of sexual abuse against her mother’s boyfriend.
The jury was unable to resolve the allegation in count 1, that defendant committed a forcible lewd act on V.A. (§ 288, subd. (b)(1)). However, the jury did find defendant guilty of counts 2 and 3, which also alleged forcible lewd acts on V.A. (§ 288, subd. (b)(1)). In addition, the jury found defendant guilty of count 4, forcible sexual penetration of V.A. with a foreign object (§ 289, subd. (a)(1)).
The prosecutor identified S.A. as the victim in count 5. S.A. was 12 years old at the time she testified. When she was in second grade and living with her father and siblings, a bad thing happened while she was alone in her father’s bedroom with defendant. She used male and female dolls to demonstrate what happened. Based on her demonstration, she was laying on the bed on her back, and defendant got on top of her so their faces lined up. He then moved his private part in an up-and-down motion. She also indicated defendant was naked during the incident. After he stopped moving, he told her not to tell anyone, so she did not say anything until she was interviewed at the CAC. S.A. only testified about this single incident with defendant. When asked, “Did this ever happen[] any other time?” she responded, “Not that I could remember.” During cross-examination, she also testified one of her other older brothers “did the exact same thing that [defendant] did.” Her testimony was consistent with statements made in the forensic interview at the CAC. The jury found defendant guilty of count 5, committing a lewd act on S.A. (§ 288, subd (a)).
The youngest sister, H.A., who was 10 years old at the time of trial, was identified by the prosecutor as the victim in count 6. She testified defendant touched her on her “butt” while she was wearing pajamas when she “was about three” years old. The touch was over her pajamas. She was six years old when she was interviewed at the CAC, but she did not remember telling anyone that defendant put his hands down her pajama bottoms. She also did not recall saying she saw defendant put his hands down S.A.’s pants. A detective, who was present during H.A.’s interview at the CAC, testified H.A. told the interviewer that defendant put his hand down her pants underneath her underwear when she was in the first grade. In addition, H.A. told the interviewer she saw defendant put his hand down S.A.’s pajama pants, but she did not know if it was underneath S.A.’s underwear. The jury acquitted defendant of count 6, committing a lewd act on H.A. (§ 288, subd. (a)).
The court sentenced defendant to a total of 20 years in state prison. On counts 2 through 4, the court imposed consecutive terms of six years on each offense. On count 5, the court imposed a consecutive term of two years. To impose consecutive terms, the court relied on section 667.6.
DISCUSSION
A. UNANIMITY INSTRUCTION
Defendant contends the trial court should have given the jury a unanimity instruction on count 5, because there was testimony from several witnesses describing multiple acts of molestation against S.A. According to defendant, the verdict on count 5 may not have been unanimous, because the jury could have disagreed as to which particular act he committed against S.A.
CALCRIM No. 3500, the standard unanimity instruction, provides in part as follows: “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.” Here, the trial court gave a modified version of CALCRIM No. 3500, which limited the instruction to counts 1, 2, and 3.
“[T]he jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act ‘is intended 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.’ [Citation.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) When it is warranted, the instruction must be given sua sponte. (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
As defendant contends, there was testimony by other witnesses suggesting S.A. was molested by defendant on more than one occasion. First, V.A. described an incident during an interview on March 25, 2008, at the CAC. She said when they were living at her aunt and uncle’s house defendant came into their bedroom while V.A. and S.A. were playing. Defendant told V.A. to leave but she instead got on the top bunk of the bunk bed. S.A. and defendant were on the lower bunk. V.A. heard S.A. crying and screaming. When she got down, she saw defendant’s penis in S.A.’s vagina. After the incident, she had to wash the sheets because there was blood on them. During her testimony at trial, V.A. said she told the interviewer about the incident but had no present recollection of the event.
Second, the oldest sister, K.A., who was 17 at the time she testified, recalled seeing defendant on top of S.A. about five years previously, while they were living with their father. Defendant and S.A. were in defendant’s bedroom on the bed. She could see into the room, because it did not have doors and her room was across the hall. S.A. was lying on her stomach, and defendant was on top of her moving his lower body up and down. Both were wearing clothes. K.A. went into the room and told defendant to get off of her, and he did. She did not tell anyone, because she had been molested by a cousin when she was younger, and when she told her father, he beat her.
Third, the youngest sister, H.A., told an interviewer at the CAC on March 27, 2008, that she had seen defendant put his hand down S.A.’s pajama pants. H.A. was not able to give any indication of the timeframe when this occurred.
During closing arguments, the prosecutor focused on the testimony of each victim to support the charged offenses. Specifically, when read as a whole, it is clear the prosecutor was relying heavily on S.A.’s testimony about a single act committed against her by defendant to support the charge in count 5. It is therefore unlikely the jury misunderstood the evidentiary basis for this count. On the other hand, the prosecutor did summarize the testimony of the various witnesses and did talk about the other acts by defendant against S.A., which were revealed by K.A. and H.A. Although improbable, it is possible the jury could have disagreed as to which specific act or acts defendant committed to support the conviction on count 5. Thus, the trial court should have included count 5 in its unanimity instruction.
The question then becomes whether the court’s failure to give the instruction requires reversal. To determine whether reversal is warranted under the circumstances, we must apply the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18. (People v. Wolfe (2003) 114 Cal.App.4th 177, 180, 185-188 [Fourth Dist., Div. Two].) Chapman requires us to look to the evidence considered by the jury under the instructions given to assess the prejudicial impact or harmless nature of the error. (Wolfe, at p. 188.) Under this standard, the reviewing court must consider “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ [Citations.]” (People v. Harris (1994) 9 Cal.4th 407, 424, quoting Chapman, at p. 24.) In other words, we must determine whether the jury’s verdict would have been the same beyond a reasonable doubt in the absence of the instructional error. (Harris, at pp. 426-427.) Failure to give a unanimity instruction is harmless error where the defendant offers the same defense to all of the alleged acts, and the jury’s verdict implies that it did not believe the only defense offered. (People v. Leffel (1988) 203 Cal.App.3d 575, 587-588.)
Here, we have no doubt the jury would have reached the same guilty verdict on count 5 even if the trial court included this offense in the unanimity instruction. The case was essentially a credibility contest. The main thrust of the defense was that defendant’s sisters simply could not be believed. Defendant attempted to show his sisters were motivated to lie because of sibling rivalry. He also attacked their credibility in other ways. As noted above, the prosecutor emphasized in closing arguments that S.A.’s testimony supported a guilty verdict on count 5 and focused on the content of her testimony. In addition, the jurors specifically asked for S.A.’s testimony to be read back to them in its entirety. This indicates that in reaching a guilty verdict on count 5, the jury’s focus was appropriately on S.A.’s testimony about the single incident of sexual molestation she testified about at the time of trial. The jury then resolved the basic credibility determination in favor of S.A. and against defendant. In addition, S.A.’s testimony was strong and consistent. On the record before us, we therefore conclude any error in failing to give a unanimity instruction as to count 5 was harmless under the Chapman standard.
B. DUE PROCESS AT SENTENCING
Defendant contends that during his sentencing hearing on March 26, 2010, his trial counsel gave the court reason to believe he had complaints about the adequacy of his legal representation. As a result, he argues the trial court should have asked defendant about his specific complaints and given him an opportunity to state reasons to discharge appointed counsel pursuant to Marsden, supra, 2 Cal.3d 118. Defendant contends the court has a broad duty to inquire about any circumstances suggesting counsel’s representation is not adequate. Because the court did not make a more specific inquiry in his case, defendant argues his right to due process was violated and he was prejudiced. According to defendant, he was prejudiced because he might have been able to justify counsel’s discharge and/or establish counsel’s assistance was ineffective.
In support of his claim, defendant cites the following dialogue from the sentencing hearing:
“THE COURT: We are here for a sentencing hearing for [defendant]. The Court has reviewed and considered the probation report. [¶] Are we ready to proceed?
“[DEFENSE COUNSEL]: We are. [Defendant] had some issues in that there were things that he wanted to get into the record regarding evidence. I told him that it was kind of late for that, but that he does have an appeal right and that I will aid him through that process.
“THE COURT: Is he asking just to address the Court?
“[DEFENSE COUNSEL]: I don’t think so. They are just documents and things that he says should have been put into the trial.
“THE COURT: That is different.
“[DEFENSE COUNSEL:] And that is something that I told him that I will work through to make sure that that is noted because when they ask you what issues are out, I will let them know.
“THE COURT: Well, he does have a right of allocution if he wishes to address the Court prior to sentencing. [¶] That is not what he wishes to do?
“[DEFENSE COUNSEL:] No. And we had a talk in chambers.
“THE COURT: We did.”
Also in support of his claim, defendant cites conclusory allegations made on the record by his father at the time of sentencing indicating his daughters were “making up things” and the case was not properly investigated.
“[T]he decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney... is within the discretion of the trial court....” (Marsden, supra, 2 Cal.3d at p. 123.) A defendant’s right to the effective assistance of counsel may include the right to have other counsel substituted if it is shown “that failure to do so would substantially impair or deny the right....” (Ibid.) A trial court abuses its discretion if it denies a motion for substitution of attorneys “without giving a party an opportunity to present argument or evidence in support of his contention....” (Id. at p. 124.) A trial court must discharge appointed counsel “upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]” (People v. Dickey (2005) 35 Cal.4th 884, 917 (Dickey).)
“Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’ [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 156 -157, italics added.) For example, the defense counsel in Dickey told the court following the guilt phase of trial that he and defendant had become embroiled in a disagreement over trial tactics, such as how certain matters should have been presented and what witnesses should have been called. To resolve their disagreements, counsel proposed to defendant and then to the court that separate counsel be appointed for the limited purpose of investigating their disagreements, determining whether there were grounds to claim counsel acted incompetently during trial, and if so, to file a motion for a new trial. (Dickey, supra, 35 Cal.4th at page 918.) Counsel also stated a belief that the best time for the hearing of such a motion would be after the penalty phase. (Id. at p. 919.)
The trial court in Dickey then referred to Marsden even though defendant had not made a specific request to substitute counsel. In addition, the trial court incorrectly told the defendant Marsden hearings were not to be conducted in the middle of trial and would have to wait until after the penalty phase. (Dickey, supra, 35 Cal.4th at p. 919.) Separate counsel was appointed and a motion for a new trial was filed, but denied by the court. (Id. at p. 920.) On appeal, defendant argued the trial court prejudicially erred by not conducting a Marsden hearing when he complained about counsel’s performance. (Dickey, at p. 918.) The appellate court concluded there was no Marsden error, because defendant did not clearly indicate he wanted to substitute new counsel. (Dickey, at p. 920.) Instead, the appellate court stated as follows: “To the extent he made his wishes known, he wanted to use counsel’s assertedly incompetent performance in the guilt phase as one of the bases of a motion for new trial, and he wanted to have separate counsel appointed to represent him in the preparation of such a motion. As his expressed wishes were honored, he has no grounds for complaint now.” (Id. at pp. 920-921, fn. omitted.)
In our view, the record in this case shows no clear indication by defendant that he wanted to discharge his appointed trial counsel and substitute another attorney. The comments made by defendant’s trial counsel suggesting defendant was dissatisfied with some of counsel’s tactical decisions at trial were made at the time of sentencing. Counsel advised the court that defendant was ready to proceed with sentencing. In addition, defendant was given an opportunity to speak directly to the court and could have requested substitute counsel to either investigate a basis for a motion for a new trial or to represent him for sentencing purposes. Defendant remained silent. Thus, he made no clear indication a Marsden inquiry or hearing was necessary. Under these circumstances, we cannot conclude the trial court committed Marsden error.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P. J., KING J.