Opinion
G062852
10-30-2024
THE PEOPLE, Plaintiff and Respondent, v. EFREN DEDIOS-HERNANDEZ, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 20HF0485, Michael Cassidy, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, ACTING P. J.
Defendant Efren Dedios-Hernandez began sexually molesting his daughter Jane Doe (Jane) when she was 14 years old. Jane did not disclose the abuse to the police until she was 21 years old. The People charged defendant with 18 sex crimes committed against Jane, both when she was a child and when she was an adult. The jury found defendant guilty of all charged counts. The trial court imposed a 74-year prison sentence.
Defendant claims eight of his convictions are not supported by substantial evidence. Defendant also claims the trial court committed two instructional errors, incorrectly responded to a jury question, and abused its discretion by allowing the People to amend the information. Defendant further claims cumulative prejudice and an error in the abstract of judgment.
The Attorney General concedes the error in the abstract of judgment. The Attorney General also points out that the trial court failed to sentence defendant as to one of the 18 convictions (count 18).
We reverse the sentence. On remand, we direct the trial court to resentence defendant (to include count 18), and to prepare an amended abstract of judgment. In all other respects, the judgment is affirmed.
I. FACTS AND PROCEDURAL BACKGROUND
On April 5, 2020, Jane was 21 years old. She lived with her mother, her younger sister, and defendant. The family lived in a two-bedroom apartment, but shared one bedroom with two beds. Jane was alone in the apartment with defendant when he entered the bedroom, closed the door, and locked it behind him. Jane was changing her pants. Defendant pushed Jane face down on the bed and climbed on top of her. Jane believed defendant was going to sexually assault her. Jane was able to push defendant off of her. He then picked up a knife and threatened to kill himself. Jane's mother and sister returned to the apartment.
Jane left the apartment and met up with her boyfriend Eric C. (Eric) at a store down the street. Jane and Eric had been dating since she was in high school. Jane had told Eric about her father's sexual abuse when they first started dating. Eric had encouraged Jane to tell her mother and to call the police, but Jane was afraid to do so because she "didn't want to ruin the family." Jane was upset and told Eric what happened that day. They returned to the apartment, where Jane disclosed the sexual abuse to her mother and sister. Jane eventually called 911.
Police Investigation
Jane told a deputy that responded to the 911 call that "since the age of about 14, in 2003, roughly, her father began groping her, grabbing her breasts and her buttocks, both under and over the clothing, and eventually it led to penetration by his fingers into her vagina, using one or two fingers. And then in roughly November of 2018 was the first time that her father had sexual intercourse with her and she stated that there was approximately three to four different instances of sexual intercourse with her father since November of 2018." Jane said the last time defendant had intercourse with her was about a month prior.
A sexual assault investigator from the sheriff's department interviewed Jane about five times. These interviews took place at the family's apartment, in the station, and over the phone. Jane did not recall the specific date when her father began sexually abusing her. However, she recalled that "the incidents first started approximately two to three months after her mother had a miscarriage." Jane said it started either at the end of her middle school or the beginning of high school. Jane's mother said she had a miscarriage in 2013, when Jane was 14 years old.
The deputy and the sheriff's investigator later testified at trial. During defendant's case, he entered into evidence only one of the recorded interviews with the investigator.
Jane said the abuse started with defendant "touching her over her clothes on the butt, vagina, and breasts." After that, defendant began touching Jane over her clothes, and "very rapidly after that is when she said he started inserting his finger into her vagina." Jane estimated that the incidents occurred about 10 times a year, and "that it was about 50 times over the time from when it first started until she was age 18." Jane said that "several times he would attempt to grab her hand and force her to put her hand on his penis." Jane said that in November 2018, when she was over the age of 18, defendant inserted his penis into her vagina. The investigator testified that Jane said this occurred four times.
The investigator did not order a sexual assault exam because the last reported abuse was outside of the suitable range. The investigator had Jane call defendant in a recorded covert call. When confronted, defendant said, "I'm a scumbag that took advantage of you." When Jane asked why, defendant said, "Because I'm animal. Understand that. Okay?" Jane asked, "Oh so you are going to tell the police everything?" Defendant responded, "Yes." He said, "Or how do you want to end this. I'm telling you that I'm not going to touch you, I'm not going to do anything to you ...."
After defendant's arrest, Jane asked the investigator if it was her decision whether or not to press charges. The investigator told Jane "based on the fact that she was a minor at the time of the incidents that typically they do not have a choice. It would be up to the District Attorney whether they were going to file charges or not." Jane later called the investigator and said that "she had the last few days to think about the timeline of when the incidents occurred and she indicated to me that she now recalled that the incidents didn't start when she initially told me. She now stated she believed they started somewhere between the ages of 16 to 16 and a half."
Court Proceedings
The People filed an 18-count information: (1) a lewd act upon a 14-year-old child ("Breasts one time"); (2) a lewd act upon a 14-year-old child ("Butt one time"); (3) sexual penetration of a child 14 years of age or over ("One time"); (4) lewd act upon a 15-year-old child ("Breasts another time"); (5) lewd act upon a 15-year-old child ("Butt another time"); (6) sexual penetration of a child 14 years of age or over ("Another time"); (7) sexual penetration of a child 14 years of age or over ("A third time"); (8) sexual penetration of a child 14 years of age or over ("A fourth time"); (9) sexual penetration of an adult ("One time); (10) sexual penetration of an adult ("Another time"); (11) sexual penetration of an adult ("A third time"); (12) sexual battery by restraint ("Breast"); (13) sexual battery by restraint ("Butt"); (14) forcible rape of an adult ("First time"); (15) forcible rape of an adult ("Second time"); (16) forcible rape of an adult ("Third time"); (17) forcible rape of an adult ("Fourth time"); and (18) assault with the intent to commit a sexual offense ("Rape").
Count 18 was alleged to have occurred on April 5, 2020. Each of the remaining counts were alleged to have occurred over a date range based on Jane's birthday (March 28, 1999). For example, count eight was alleged to have occurred between March 28, 2016, and March 27, 2017.
At trial, Jane testified that the first time anything happened with defendant was "when my mom had a miscarriage or she was sick for some reason." Jane was lying in bed with defendant when he touched her breasts and her buttocks over her clothing. Defendant would continue to touch Jane in a sexual manner, sometimes on a weekly basis. The touching escalated and defendant would touch Jane over and under her clothes. Defendant put his mouth on her breasts. Defendant touched her vagina both over and under her clothes. Defendant put his fingers in her vagina. This occurred a few months after the sexual touching began. Defendant also grabbed her hand and put it towards his penis. Jane said she could not remember how many times this happened. The sexual acts escalated to the point where defendant put his penis in her vagina. Jane remembered telling the police this happened three to four times. Jane said this happened at least two times on the bed and more than one time in the bathroom.
Jane's mother testified that she told the police that she had a miscarriage six or seven years ago. She testified that Jane was about 14 years old at that time. Jane's boyfriend Eric testified that they had been in a relationship since November 2016. Jane told Eric about the relationship between her and her father when they started dating. Jane told him defendant "would touch her and pretty much rape her." Jane was crying when she told Eric, and he encouraged her to tell her mother and the police.
An expert testified regarding Child Sexual Abuse Accommodation Syndrome (CSAAS). There are five components to CSAAS: (1) secrecy; (2) helplessness; (3) accommodation and entrapment; (4) delayed and unconvincing (inconsistent) disclosure; and (5) retraction or recantation. The expert testified that "all the studies have found that two-thirds of the children wait until adulthood to report abuse." The expert testified "that children really do love and care about the person who's abusing them, so once they see the abuser facing serious consequences as a result of the disclosure of sexual abuse, a [child] may want to walk those back to soften the consequences of what is happening to the abuser. So a child may back pedal."
The jury asked two substantive questions during deliberations. The People moved to amend the information to strike the word "Breast" from count 12 and the word "Butt" from count 13. The court granted the motion.
The jury returned guilty verdicts on all 18 counts. At sentencing, Jane asked the trial court to extend leniency to her father. The court imposed a total sentence of 74 years. The court did not impose a sentence as to count 18 (there is no explanation in the record as to how or why this occurred).
II.
DISCUSSION
Defendant claims: A) eight counts are not supported by substantial evidence; B) the trial court committed two instructional errors and responded incorrectly to a jury question; C) the court improperly allowed the prosecution to amend the information; D) cumulative prejudice; and E) an error in the abstract of judgment.
A. Substantial Evidence Claims
Defendant claims eight of his convictions are not supported by substantial evidence. We disagree.
"When considering a challenge to the sufficiency of the evidence . . ., we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Lindberg (2008) 45 Cal.4th 1, 27, italics added.)
"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).) "The reviewing court presumes in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence." (People v. Bloom (1989) 48 Cal.3d 1194, 1208 (Bloom).)
1. Sexual Battery by Restraint
The jury convicted defendant of two counts of sexual battery by restraint. (Pen. Code, § 243.4, subd. (a).) On appeal, defendant claims that only one of those counts is supported by substantial evidence. We disagree.
Undesignated statutory references are to the Penal Code.
"Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery." (§ 243.4, subd. (a).)
"Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person's will . . . to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery." (§ 243.4, subd. (d).)
Here, in counts 12 and 13, the People charged defendant with a violation of section 243.4, subdivision (a). Jane testified at trial that defendant exposed his penis to her. Jane said he took her hand and tried to force her hand to grab onto his penis, but she did not remember how many times this occurred. She told the detective in the first recorded interview, that "there was one or two times where he did actually make me touch it." Based on this out-of-court statement, defendant argues that the evidence "supports convictions on only one count."
It appears that the sexual battery counts should have been more appropriately charged under section 243.4, subdivision (d), rather than subdivision (a). However, the jury was properly instructed as to section 243.4, subdivision (d), and both subdivisions are subject to the same punishment. Further, this issue was never raised in the trial court, nor has it been raised on appeal. (See United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [an appellate court has no obligation to make arguments on behalf of litigants]; People v. Graham (2024) 102 Cal.App.5th 787, 798 ["'arguments not raised in the trial court are forfeited on appeal'"]; People v. Lowery (2020) 43 Cal.App.5th 1046, 1054 ["a party must raise an issue in the trial court if they would like appellate review"].)
However, the detective testified at trial that Jane "said that she would hold her hand tight and against her body so that he was unable to pull her hand to touch . . . his penis. [¶] But she stated that she recalls when she was in high school that it did happen twice, where he was able to make her touch his penis." While the recorded interview that was entered into evidence by defendant would tend to impeach the detective's testimony, the detective testified that he conducted other interviews with Jane that were either not recorded, or not entered into evidence.
We agree that the evidence is inconsistent as to the number of times defendant forced Jane to touch his penis. However, that inconsistency was necessarily resolved by the jurors' unanimous verdicts as to counts 12 and 13, and the detective's testimony supports their judgment. It is simply not our role in a substantial evidence review to reweigh the evidence or second guess the judgment of the jurors. (Young, supra, 34 Cal.4th at p. 1181 ["Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact"]; Bloom, supra, 48 Cal.3d at p. 1208 ["The reviewing court presumes in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence"].)
Thus, we find there was sufficient evidence to support the two convictions under counts 12 and 13 for sexual battery by restraint.
2. Forcible Rape
The jury convicted defendant of four counts of forcible rape. On appeal, defendant claims that only three of those counts are supported by substantial evidence. We disagree.
Forcible rape is defined as intercourse with a person who is not the spouse of the perpetrator against the person's will by means of force or violence. (§ 261, subd. (a)(2); People v. Griffin (2004) 33 Cal.4th 1015, 1022.) It is well "recognized that 'in order to establish force within the meaning of section 261, the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim].'" (Id. at pp. 1023-1024.)
Jane testified that starting when she was 18 years old, defendant had sexual intercourse with her multiple times, and she did not consent to it. Jane testified that she told defendant she did not want to have intercourse, but he did not listen. Defendant told Jane that if she told anyone about it, he would go to jail. Jane testified that intercourse occurred with defendant in the bathroom more than one time. Jane also testified that sexual intercourse occurred at least two times in the bedroom.
Thus, there was sufficient evidence to sustain defendant's four convictions for forcible rape.
On appeal, defendant does not challenge any of the elements of the four forcible rape convictions (including the "force" element). However, defendant argues that sufficient evidence only supports three of the four convictions. Defendant acknowledges that "Jane testified there were at least two incidents where sexual intercourse occurred in the bed." But defendant argues that Jane's testimony as to the number of times that intercourse occurred in the bathroom was "contradictory."
At one point during her testimony about sexual intercourse with defendant, the prosecutor asked, "'And you said that occurred in the bathroom more than one time?'" (Italics added.) Jane responded, "Yes." After the court overruled an objection by defendant's counsel, the prosecutor asked, "Did he force himself into you in the bathroom more than one time?" After the court overruled another objection by defendant's counsel, Jane responded, "One to two times, probably."
We agree Jane's testimony was somewhat contradictory about the number of times defendant raped her. But Jane testified that at least two rapes had occurred in the bedroom, and she testified that more than one rape had occurred in the bathroom. Therefore, there is sufficient evidence to support the jury's determination that there were four forcible rapes. Again, it is simply not our role in a substantial evidence review to resolve various inconsistencies in the evidence. (See Young, supra, 34 Cal.4th at p. 1181 ["Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact"]; see also Bloom, supra, 48 Cal.3d at p. 1208 ["The reviewing court presumes in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence"].)
Defendant relies on People v. Newlun (1991) 227 Cal.App.3d 1590 (Newlun), to support his claim that the evidence is insufficient to support the four forcible rape convictions. We disagree.
In Newlun, defendant was convicted of 15 counts of child molestation against an infant child. (Newlun, supra, 227 Cal.App.3d at p. 1594.) During trial, the now four-year-old victim "testified that defendant 'stuck his peepee in my peepee,' but could not say accurately or consistently how often. When first asked, she counted to 11; when asked again, she counted to 5." (Id. at p. 1597.) The appellate court held the child's counting testimony "did not adequately establish the number of lewd acts committed." (Id. at p. 1601.) However, the appellate court affirmed all 15 of defendant's convictions based on other evidence. (Id. at p. 1605.)
We find the Newlun case to be inapposite. The court's statement regarding the sufficiency of the victim's testimony was dicta because it had no effect on the court's holding. (See Western Landscape Construction v. Bank of America (1997) 58 Cal.App.4th 57, 61 ["Only statements necessary to the decision are binding precedents; explanatory observations are not binding precedent"].) Further, unlike the four-year-old victim in Newlun, supra, 227 Cal.App.3d 1590, Jane was an adult at the time of her testimony, and fully able to competently testify. (See Young, supra, 34 Cal.4th at p. 1181 ["unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction"].)
Thus, Newlun does not alter our analysis the evidence was sufficient to support defendant's four convictions for forcible rape.
3. Sexual Penetration
The jury convicted defendant of four counts of sexual (digital) penetration of a child. On appeal, defendant claims that only two of the counts are supported by substantial evidence. We disagree.
Section 289, subdivision (a)(1)(C), is violated when a person "commits an act of sexual penetration upon a minor who is 14 years of age or older, when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person."
"'Sexual penetration' is the act of causing the penetration, however slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device ...." (§ 289, subd. (k)(1).) "A finger is a 'foreign object' within the meaning of this section." (People v. Adams (1993) 19 Cal.App.4th 412, 428, disapproved on other grounds in People v. Chhoun (2021) 11 Cal.5th 1, 38.)
Here, the evidence established: (1) that Jane's mother had a miscarriage when Jane was approximately 14 years old, (2) that Jane began dating her boyfriend in November 2016, (3) that she graduated from high school in December 2016 (at 16 years old), and (4) that Jane turned 18 on March 27, 2017. Jane testified that defendant began sexually touching her right after her mother's miscarriage before she started dating her boyfriend, and in the interview with the detective, she said defendant began putting his fingers inside of her vagina when she was still in high school.
The investigator asked, "Do you remember how many times that happened? Can you .... What, would you say it happened more than 10 times?" Jane responded, "At first it was just here and there." "So I'm guessing very few. And then, after that, it was a little more often. And then, until maybe two, two and a half years, it's been constant." (Italics added.)
The investigator asked, "Did any, did any, did it progress after that?" Jane responded, "Yes." The investigator testified that "about a year to a year and a half after the touching over the clothes started is when the touching of the breasts, vagina, and butt started happening under the clothes and was skin-to-skin contact. And very rapidly after that is when [Jane] said [defendant] started inserting his finger into her vagina." Jane said that the sexual incidents occurred about 10 times a year, and "that it was about 50 times over the time from when it first started until she was age 18."
In sum, we find the evidence is sufficient to support the jury's factual determination that defendant committed at least four acts of sexual penetration against Jane when she was between the ages of 14 and 18.
Defendant argues that the evidence shows he only twice inserted his fingers into Jane's vagina before she turned 18 years old because Jane was not sufficiently specific in her trial testimony. We disagree.
Considering the entire record, and the presumption of the existence of every fact in support of the judgment, we find the jury could reasonably deduce that of the approximately 50 acts of sexual molestation that defendant committed before Jane turned 18 years old, that at least four of those acts involved digital penetration. (See People v. Abrego (1993) 21 Cal.App.4th 133, 136 ["When reviewing a claim of insufficiency of the evidence to support a conviction, we view the entire record in the light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment"].)
4. Lewd or Lascivious Act
The jury convicted defendant of four counts of committing a lewd act upon a child. On appeal, defendant claims that all four counts are not supported by substantial evidence. We disagree.
Generally, "a person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of 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, is guilty of a felony and shall be punished . . . in the state prison for thee, six, or eight years." (§ 288, subd. (a).) "A person who commits an act described in subdivision (a) . . ., and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years ...." (§ 288, subd. (c)(1).)
Jane reported that defendant's sexual abuse included him repeatedly touching her breasts and buttocks. Jane told the investigator that the touching began two to three months after her mother had a miscarriage, which happened when Jane was 14 years old. There is no dispute that defendant is at least 10 years older than Jane. The People charged defendant with four counts of committing a lewd act upon Jane: count one (14 years old, "Breasts"); count two (14 years old "Butt"); count four (15 years old, "Breasts"); and count five (15 years old, "Butt").
Thus, based on the testimony presented at trial, we find sufficient evidence supports the jury's guilty verdicts on all four counts of violating section 288, subdivision (c)(1).
On appeal, defendant concedes that based on Jane's initial reports to the police, "the dates these crimes occurred appeared to be solid." However, because Jane called the detective several days later and changed her story-now claiming that the crimes began when she was 16 years old- defendant argues there is not sufficient evidence to support the jury's four section 288, subdivision (c)(1), convictions. We disagree.
Jane's statements to the detective after defendant's arrest were consistent with the CSAAS evidence: "children really do love and care about the person who's abusing them, so once they see the abuser facing serious consequences as a result of the disclosure of sexual abuse, a child may want to walk those back to soften the consequences of what is happening to the abuser. So a child may back pedal."
Moreover, defendant's argument appears to fundamentally misapprehend the role of an appellate court in a substantial evidence review: "To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.'" (Ibid.)
To reiterate and conclude, we hold that substantial evidence supports defendant's convictions on the eight challenged counts.
B. Instructional Errors and Improper Response to Jury Question Claims
We review instructional error claims de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) We determine whether the trial court fully and fairly instructed the jury on the applicable law. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
"After the jury have retired for deliberation . . . if they desire to be informed on any point of law . . ., they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." (§ 1138.) "In general, errors under section 1138 are reviewed for an abuse of discretion." (People v. Doane (2021) 66 Cal.App.5th 965, 980.) A ruling constitutes an abuse of discretion if it "is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
1. Jury Instruction Claim (Unanimity)
Defendant claims the trial court should have given the jury a unanimity instruction as to 13 of the 18 counts. We agree there was error, but we do not find that the error was prejudicial.
A trial court has a sua sponte duty to give a unanimity instruction when "'there is a risk the jury may divide on two discrete crimes and not agree on any particular crime.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 878.) "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.'" (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
However, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception. (People v. Lueth (2012) 206 Cal.App.4th 189, 196.) The continuous-course-of-conduct exception is applicable when "(1) 'the acts are so closely connected in time as to form part of one transaction'; (2) 'the defendant tenders the same defense or defenses to each act'; and (3) 'there is no reasonable basis for the jury to distinguish between them.'" (Ibid.; see also People v. Williams (2013) 56 Cal.4th 630, 682 [unanimity instruction may not be required where "'the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish among them'"].)
In this case, the trial court instructed the jury: "The defendant is charged with Committing a Lewd or Lascivious Act on a child of 14 or 15 years in counts 1, 2, 4, and 5 sometime during the period of March 28, 2013, to March 28, 2015. [¶] 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 committed." (CALCRIM No. 3500 [Unanimity].)
Defendant claims that the court should have instructed the jury that the unanimity instruction also applied to 13 additional counts: the seven sexual penetration charges (counts three, six, seven, eight, nine, 10, and 11); the two sexual battery charges (counts 12 and 13); and the four forcible rape charges (counts 14, 15, 16, and 17).
These counts were not alleged to have occurred so close in time so as to form part of one transaction, so all three elements of the course-of-conduct exception do not apply. (See People v. Lueth, supra, 206 Cal.App.4th at p. 196.) That is, we agree the trial court committed instructional error by limiting the unanimity instruction to only four of the 18 counts.
However, we find the instructional error to be harmless under any standard of review. Where, as here, "the defendant offered the same defense to all criminal acts and 'the jury's verdict implies that it did not believe the only defense offered,' failure to give a unanimity instruction is harmless error." (People v. Hernandez (2013) 217 Cal.App.4th 559, 577; accord, People v. Jones (1990) 51 Cal.3d 294, 307; People v. Thompson (1995) 36 Cal.App.4th 843, 853 [where "record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless"].)
In other words, the failure to instruct on unanimity is harmless where '"the jury's verdict implies that it did not believe the only defense offered.'" (People v. Deletto (1983) 147 Cal.App.3d 458, 468; People v. Brown (1996) 42 Cal.App.4th 1493, 1502 ["The important question is whether there was anything in the record by way of evidence or argument to support discriminating between the two incidents such that the jury could find that appellant committed one molestation but not the other"]; People v. Thompson, supra, 36 Cal.App.4th at p. 853 ["Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that [the] defendant committed all acts if he committed any"].)
In this case, defendant's defense was that the sexual encounters occurred after Jane had turned 18 years old and they were consensual in nature. Throughout closing arguments, defendant's counsel argued, "You understand the circumstances here we're dealing with, an adult child and a parent. And when-if and when those two persons have sexual activity, there's a word for it. It's called incest. Okay. He's not charged with incest. So let's get that straight. We're not here to convict or charge or look for those types of grounds, because if they wanted to charge him with that, then they certainly had their option of doing that."
Defendant's counsel contended the prosecution had engaged in "overkill, overcharging, trying to get something out of nothing." Counsel argued that Jane could have left at any time: "So the fact that she decided to stay there was her own volition, her own will. The fact that she, after turning 18, decided to continue sleeping in the same bed with her father. Nobody does that. Nobody takes order to do that. That is a choice that one makes when they want to do that."
Counsel continued, "You think that if it happened, the People want you to believe when she was 14 or 15, that all this time she had the opportunity to report, especially since her mother was supportive." Counsel argued, "This is not a victim of child molest. This is not a victim of rape. This is not some battered woman who is trying to get back with the husband because she's afraid of what he might do. She's got the whole wide world open to her to go forth in."
Counsel contended, "They got a thing going on and it's their thing. And it's not rape. And it's something else, but it's not rape and it's not child abuse. It's not those things that he's being charged with. It's not penetration with a foreign object because if . . . one has permission to do those things, if one has a relationship, and it's a sexual relationship, then they are going to do things like that, it's called foreplay."
The jury found defendant guilty of all 18 charged crimes, necessarily rejecting defendant's arguments regarding the consensual nature of the acts. "This is not a case in which different witnesses testified as to one incident but not the other or where different items of real evidence were introduced to prove one act but not the other, so that the jury might have distinguished between the credibility of different witnesses or the weight to be given various items of real evidence." (See People v. Deletto, supra, 147 Cal.App.3d at pp. 466, 468 [the evidence "compels the conclusion that 'the jury's verdict implies that it did not believe the only defense offered'"].)
Thus, even though we find the trial court erred when it restricted the unanimity instruction to only four counts, we find the error to be harmless under any standard. (See People v. Watson (1956) 46 Cal.2d 818, 835; Chapman v. California (1967) 386 U.S. 18, 24.)
2. CALCRIM No. 207 and Jury Question Claim
Defendant claims the court improperly instructed the jury using CALCRIM No. 207 (Proof Need Not Show Actual Date), and improperly responded to a jury question. But defendant did not object at trial, so these claims have been forfeited on appeal. In the alternative, we do not find that defendant has established ineffective assistance of trial counsel.
In order to raise an alleged error on appeal, the issue must first have been raised in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293 &fn. 2.) In a criminal trial, "'a "contrary rule would deprive the People of the opportunity to cure the defect at trial and would 'permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.'"'" (People v. Robinson (2024) 99 Cal.App.5th 1345, 1356-1357; People v. Virgil (2011) 51 Cal.4th 1210, 1260 [a party's failure to object to jury instructions forfeits the claim on appeal]; People v. Salazar (2016) 63 Cal.4th 214, 248 [a defendant forfeits an argument the trial court erred in responding to a jury question where the defendant's trial counsel approved the response].)
Here, the court instructed the jury: "It is alleged that the crimes occurred between March 28, 2013 to April 5, 2020. The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day." (CALCRIM No. 207.)
After deliberations began, the jury submitted two substantive questions. The first was: "We, the jury in the above entitled action, request the following: Each count broken out. We do not know which ones are which body parts / ages."
The court responded: "Court's Response to Question No. 1: [¶] Count 1: Between 3/28/2013 and 3/27/2017 - Breasts one time (Age 14) [¶] Count 2: Between 3/28/2013 and 3/27/2017 - Butt one time (Age 14) [¶] Count 3: Between 3/28/2013 and 3/27/017 - Penetration Foreign Object by Force -One time (Under 18) [¶] Count 4: Between 3/28/2013 and 3/27/2017 - Breasts another time (Age 15) [¶] Count 5: Between 3/28/2017 and 3/27/2017 - Butt another time (Age 15) [¶] Count 6: Between 3/28/2013 and 3/27/2017 -Penetration Foreign Object by Force - another time (Under 18) [¶] Count 7: Between 3/28/2013 and 3/27/2017 - Penetration Foreign Object by Force - a third time (Under 18) [¶] Count 8: Between 3/28/2013 and 3/27/2017 -Penetration Foreign Object by Force - fourth time (Under 18) [¶] Count 9: Between 3/8/2017 and 4/5/2020 - Penetration Foreign Object by Force one time (Any age) [¶] Count 10: Between 3/28/2017 and 4/5/2020 - Penetration Foreign Object by Force another time (Any age) [¶] Count 11: Between 3/28/2017 and 4/5/2020 - Penetration Foreign Object by Force - a third time (Any age) [¶] Count 12: Between 2/8/2017 and 4/5/2020 - Breast (Any age) [¶] Count 13: Between 3/28/2013 and 4/5/2020 - Butt (Any age) [¶] Count 14: Between 11/1/2018 and 4/5/2020 - Forcible Rape first time (Any age) [¶] Count 15: Between 11/1/2018 and 4/5/2020 - Forcible Rape second time (Any age) [¶] Count 16: Between 11/1/2018 and 4/5/2020 - Forcible Rape Third time (Any age) [¶] Count 17: Between 11/1/2016 and 4/5/2020 - Forcible Rape Fourth time (Any age) [¶] Count 18: On or about 4/5/2020 - Assault with intent to commit Rape (Any age)[.]"
Defendant argues the trial court should not have instructed using CALCRIM No. 207, and the date ranges for counts one, two, four, and five were incorrect in the court's response to the jury's question. But defendant did not object at trial to the jury instruction, which is a correct statement of the law (CALCRIM No. 207), and he did not object to the court's response to the jury's question, so these issues have been forfeited for purposes of appeal.
Recognizing this forfeiture issue, defendant argues in the alternative his counsel provided ineffective assistance. We disagree.
A defendant has a right to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 685-686 (Strickland).) To establish a violation of this constitutional right, a defendant must show: 1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and 2) this resulted in prejudice to the defendant. (Id. at pp. 687-688, 691-692.)
A reviewing "court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Strickland, supra, 466 U.S. at p. 697.) Under the second prong, "the test for 'prejudice' is not solely one of outcome determination. Instead, the pertinent inquiry is 'whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.'" (In re Avena (1996) 12 Cal.4th 694, 721-722.)
As to CALCRIM No. 207, defendant argues that his counsel's representation fell below an objective standard for failing to object to the instruction (in the absence of the unanimity instruction as to some of the counts as discussed prior). But CALCRIM No. 207 is generally a correct statement of the law. (See People v. Rojas (2015) 237 Cal.App.4th 1298, 1304 ["CALCRIM No. 207 accurately states the general rule that when a crime is alleged to have occurred 'on or about' a certain date, it is not necessary for the prosecution to prove the offense was committed on that precise date, but only that it happened reasonably close to that date"].)
Thus, given that the jury instruction is ordinarily a correct statement of the law, we do not find that defendant has established ineffective assistance regarding a failure to object to CALRIM No. 207 under the first prong of Strickland on appeal. (See Strickland, supra, 466 U.S. at pp. 687-688 [whether counsel's performance fell below an objective standard of reasonableness under prevailing professional norms is a factual question]; People v. Carrasco (2014) 59 Cal.4th 924, 980-981 ["Usually, ineffective assistance of counsel claims are properly decided in a habeas corpus proceeding rather than on appeal"]; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [appellate court should not find ineffective assistance of counsel unless all facts relevant to that claim have been developed in the record].)
As to the trial court's response to the jury's question, defendant is correct in his argument that the trial court's response to the jury's first question was, in part, mistaken. The court indicated for counts one, two, four, and five, that the applicable date range was between March 28, 2013, to March 27, 2017. But the correct date range for counts one and two (when Jane was 14 years old) should have been from March 28, 2013, to March 27, 2014. And the correct date range for counts four and five (when Jane was 15 years old) should have been from March 28, 2014, to March 27, 2015.
However, the trial court's response also explicitly stated that the acts constituting counts one and two were alleged to have occurred when Jane was 14 years old, and the court's response also explicitly stated that the acts constituting counts four and five were alleged to have occurred when Jane was 15 years old.
"In assessing a claim of instructional error or ambiguity, [the reviewing court] consider[s] the instructions as a whole to determine whether there is a reasonable likelihood the jury was misled." (People v. Tate (2010) 49 Cal.4th 635, 696, italics added.) The court considers the entire charge to the jury, not parts of one instruction or a particular instruction only. (People v. Stone (2008) 160 Cal.App.4th 323, 331.)
In this case, the trial court correctly instructed the jury: "The defendant is charged in Counts 1,2, 4, 5 with a lewd or lascivious act on a 14-or 15-year-old child who was at least 10 years younger than the defendant in violation of Penal Code section 288(c)(1). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully touched any part of a child's body either on the bare skin or through the clothing; [¶] 2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself) or the child; [¶] 3. The child was 14 or 15 years old at the time of the act; [¶] AND [¶] 4. When the defendant acted, the child was at least 10 years younger than the defendant." (Italics added.)
Thus, because the court's response to the jury's question and the instruction correctly stated Jane needed to be 14 or 15 years old at the time of the acts alleged in counts one, two, four, and five, we find defendant has not established ineffective assistance of counsel based on defendant's failure to establish the prejudice prong under Strickland. (See Strickland, supra, 466 U.S. at p. 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed"].)
Defendant makes five other cursory claims of ineffective assistance, but these claims are not supported by legal citations and/or record citations, so they have been forfeited for purposes of appeal. (See WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 ["In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record"]; see also People v. Carrasco, supra, 59 Cal.4th at pp. 980-981 ["Usually, ineffective assistance of counsel claims are properly decided in a habeas corpus proceeding rather than on appeal"].)
To reiterate and conclude, we reject defendant's claims regarding CALCRIM No. 207 and the court's response to the jury's first question, on the basis that these claims were forfeited and/or defendant has failed to establish ineffective assistance. (See People v. Coley (1997) 52 Cal.App.4th 964, 972 [defendant bears the burden of showing both error and prejudice].)
C. Claim as to the Amendment of the Information
Defendant claims the trial court abused its discretion when it "granted the prosecution's motion to amend the information as to counts 12 and 13 [sexual battery by restraint] after the close of evidence and during jury deliberations." (Capitalization &boldface omitted.) We disagree.
"Section 1009 authorizes the trial court to 'permit an amendment of an . . . information . . . at any stage of the proceedings ....' Trial court discretion, in granting a motion to amend, 'will not be disturbed on appeal in the absence of showing a clear abuse of discretion.'" (People v. Bolden (1996) 44 Cal.App.4th 707, 716, italics added.)
Here, the information charged sexual battery by restraint in counts 12 and 13. In parenthesis, the information stated, "Breast" as to count 12, and the information stated, "Butt" as to count 13.
As to these two counts, the trial court instructed the jury: "The defendant is charged in Counts 12 and 13 with sexual battery in violation of Penal Code section 243.4. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant unlawfully restrained [Jane]; [¶] 2. While [Jane] was restrained, the defendant caused [Jane] to touch the intimate part of defendant; [¶] 3. The touching was done against [Jane's] will; [¶] AND [¶] 4. The touching was done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse." (CALCRIM No. 935, italics added.)
We note that the jury instruction was in conformity with section 243.4, subdivision (d).
When the jury asked for clarification of "body parts" in its first substantive question to the trial court, the court responded as to counts 12 and 13 consistent with the information. That is, the court stated that count 12 had to do with Jane's "Breast," and count 13 had to do with her "Butt."
However, the jury then followed up with a second substantive question, asking: "Counts 12 and 13 on our first question reply sheet seem to differ from the jury instructions. We thought this was forcible touching of the defendant's penis."
Outside of the presence of the jury, the trial court said: "And they are correct. The Information as stated right now, 12 and 13 says 'breast and butt,' respectively, so there will be a People's motion to amend in accordance with proof, I would think?" The prosecutor stated, "Yes, Your Honor."
The court said, "I prepared the response to Question Number 1 from the Information itself. Throughout the trial, the evidence was presented to support the fact that the sexual battery by restraint [counts 12 and 13] was touching - the defendant forcing [Jane] to touch his penis and it was also the way it was argued in closing argument."
The prosecutor stated, "The sexual battery doesn't have to actually allege any body part. It's not required. It was a typo .... That was never the theory from opening to close."
As far as the information, the trial court said, "Well, we can just strike 'breast' from Count 12 and strike 'butt' from Count 13." Defendant's counsel said, "I'm fine with that and just sending back the note [to the jury]." The court responded to the jury's question: "'You are correct, as to Counts 12 and 13 it is alleged the defendant forced [Jane] to touch his penis.'"
Defendant did not object to the court's amendment of the information, so the objection has been forfeited on appeal. (See In re S.B., supra, 32 Cal.4th at p. 1293 &fn. 2 [in order to raise an alleged error on appeal, the issue must first have been raised in the trial court].)
In any event, we find no abuse of the trial court's discretion.
"After the defendant has entered a plea, amending the accusatory pleading requires leave of court, which may be granted or denied in the court's discretion provided the amendment does not 'change the offense charged' or otherwise prejudice the defendant's substantial rights." (People v. Anderson (2020) 9 Cal.5th 946, 958.)
Defendant argues he would have somehow changed his defense had the amendment of the information occurred earlier in the proceedings. But we find that argument to be belied by the record.
The evidence at the preliminary hearing, the evidence at the trial, as well as the prosecutor's opening and closing argument, were all consistent with counts 12 and 13 to have been defendant's alleged acts of forcibly touching Jane's hand to his penis. Indeed, defendant's defense theory was that each sexual act was consensual. And as far as counts 12 and 13, defendant did not defend against allegations that he touched Jane's breast or buttocks. Thus, we find no plausible violation of defendant's rights based on the trial court's amendment of the information.
D. Cumulative Prejudice Claim
Defendant contends the cumulative prejudice of the alleged foregoing errors compels reversal of his convictions. We disagree.
"In theory, the aggregate prejudice from several different errors occurring at trial could require reversal even if no single error was prejudicial by itself." (In re Reno (2012) 55 Cal.4th 428, 483, superseded by statute on other grounds as stated in In re Friend (2021) 11 Cal.5th 720, 728.) However, the rejection of each of a defendant's individual claims "cannot logically be used to support a cumulative error claim [where] we have already found there was no error to cumulate." (In re Reno, at p. 483.)
Here, we found trial court erred by failing to extend the unanimity instruction beyond four of the counts. However, we also concluded no prejudice resulted from that error. We also found no prejudice resulted from the two forfeited claims. In short, we find no cumulate prejudice based on our prior analysis. (See People v. Cunningham (2001) 25 Cal.4th 926, 1009 ["Defendant was entitled to a fair trial but not a perfect one"].)
E. Abstract of Judgment Claim
Defendant claims that the abstract of judgment does not reflect the oral pronouncement of judgment regarding fines and fees. The Attorney General concedes the error. We agree.
However, the Attorney General also points out that the record reflects that the trial court failed to sentence defendant as to count 18.
The failure to impose a sentence "results in an unauthorized absence of sentence." (People v. Alford (2010) 180 Cal.App.4th 1463, 1472.) "A sentence must be imposed on each count ...." (Id. at p. 1469; People v. Superior Court (Roam) (1999) 69 Cal.App.4th 1220, 1230 ["The trial court has no power to suspend sentence except as incident to the grant of probation"].)
Thus, the sentence is vacated, and the matter is remanded to the trial court so it can resentence defendant on the convicted counts, to include count 18 (assault with intent to commit a sexual offense). (See §§ 220, subd. (a)(1), 1260 [an appellate court may "remand the cause to the trial court for such further proceedings as may be just under the circumstances"].)
III.
DISPOSITION
We reverse the sentence. On remand, we direct the trial court to resentence defendant and to prepare an amended abstract of judgment. In all other respects, the judgment is affirmed.
WE CONCUR: MOTOIKE, J., DELANEY, J.