Opinion
A150359
04-11-2018
THE PEOPLE, Plaintiff and Respondent, v. GREG GESTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-151877-8)
Defendant Greg Geston appeals from a conviction of committing a forcible lewd act upon a child. He argues that the conviction must be reversed because the trial court failed sua sponte to give the jury a unanimity instruction. We are not persuaded, and we therefore affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
From 1989 to 1992, Geston sexually abused the minor son of a woman with whom he was in a relationship. When the abuse began, the boy, who we refer to as John Doe, was 11 years old, and Geston was about 34. The abuse stopped when Geston and John Doe's mother ended their relationship. John Doe and Geston had no further contact until 2015, when Geston sent John Doe messages on Facebook. After receiving these messages, John Doe reported Geston's earlier abuse to police. With the assistance of a police detective, John Doe made a pretext call to Geston who, among other admissions, said he was "super sorry that [he] molested [John Doe] as a kid."
Geston was charged with six counts arising from two separate incidents of molestation: one that occurred on December 27, 1989, and another that occurred on April 10, 1990 (the April incident). A jury found him guilty of all six counts, which included, for each of the two incidents, a count of forcible sodomy of a victim under the age 14, a count of forcible oral copulation of a victim under the age 14, and a count of committing a forcible lewd act upon a child. On appeal, Geston challenges only his conviction of committing a forcible lewd act upon a child during the April incident. Because his appeal is so confined, we limit our discussion of the facts to those relating to that conviction only.
All statutory references are to the Penal Code. The two counts for forcible sodomy of a victim under the age of 14 were brought under section 286, subdivision (c)(2)(B); the two counts of forcible oral copulation of a victim under the age 14 were brought under section 288a, subdivision (c)(2)(B); and the two counts of a forcible lewd act upon a child were brought under section 288, subdivision (b)(1). Geston was also charged with, and the jury found true, an allegation that the statute of limitations had been properly extended under section 803, subdivision (f)(1)). Finally, Geston was charged with, and the trial court found true, allegations that Geston had five prior serious felony convictions under section 667, subdivision (a). Geston was sentenced to prison for 25 years, two years of which were for the conviction of the count of committing a forcible lewd act on a child during the April incident.
The April incident occurred on the day after John Doe's twelfth birthday. Late in the afternoon, Geston picked up John Doe from wrestling practice and drove him home to the apartment they shared with John Doe's mother. John Doe took a shower and came out of the bathroom wrapped in a towel. Geston "groped" John Doe by "touching [his] genitals through the towel and trying to pull the towel off of [him] and then eventually getting the towel off of [him]." As John Doe was trying to get away, Geston pushed John Doe into a bedroom and onto a bed. Geston placed his mouth on John Doe's penis and orally copulated John Doe as he resisted. Geston's mouth was on John Doe's penis for less than a minute. (The parties accept that Geston's conviction for oral copulation arose out of this conduct.) John Doe succeeded in pushing Geston off him "for a second," but Geston flipped John Doe over on the bed, held him down, and sodomized him. (The parties accept that Geston's conviction for forcible sodomy arose out of this conduct.) John Doe stopped struggling when it was clear he could not get away. After about 15 minutes, the sexual abuse stopped when Geston heard John Doe's mother's pulling her car into the garage.
In closing argument, the prosecutor stated that Geston could be convicted of committing a forcible lewd act based on "either the initial grabbing of the genitals when [Geston was] pulling the towel or the fact that [Geston] was grabbing [John Doe's] genitals and holding him down and sodomizing him."
II.
DISCUSSION
A. The Trial Court Did Not Prejudicially Err by Failing to Give the Jury a Unanimity Instruction.
Geston's sole appellate claim is that his conviction for committing a forcible lewd act during the April incident must be reversed because his conviction could have been supported by two different acts identified by the prosecutor during closing argument and the trial court should have, but failed, to give the jury a unanimity instruction. We are not convinced that a unanimity instruction was required, but even if we assume that it was, we conclude that the error was not prejudicial.
The jury was instructed that for it to find Geston guilty of a forcible lewd act on a child it had to find beyond a reasonable doubt that (1) Geston willfully touched any part of John Doe's body either on the bare skin or through the clothing; (2) in committing the act, Geston used force, violence, duress, menace, or fear of immediate and unlawful bodily injury to John Doe or someone else; (3) Geston committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or John Doe; and (4) John Doe was under the age of 14 years at the time of the act. Geston accepts that the instruction was proper, but he argues that the jury could have disagreed over which of the gropings satisfied all of the required elements. As to the first groping, he argues that the jury could have found that he "did not use force or fear to accomplish the fondling" or "use[] more force than was necessary to accomplish the touching." As to the second groping, he argues that John Doe testified that Geston was "trying" to grope [John Doe's] testicles, leaving the possibility that the jury could have had a "doubt whether the attempt was successful."
We begin our analysis with an overview of the applicable law. A jury in a criminal case must unanimously agree that "the defendant is guilty of a specific crime." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) Thus, "[a]s a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty." (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).) "The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count." (People v. Deletto (1983) 147 Cal.App.3d 458, 472.) Russo provided an example of the kind of different acts requiring a unanimity instruction. "If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts." (Russo, at pp. 1132-1133.) The failure to give a unanimity instruction in such circumstances "has the effect of lowering the prosecution's burden of proof." (People v. Wolfe (2003) 114 Cal.App.4th 177, 186.) When a unanimity instruction is required, a trial court must sua sponte give one even if the defendant has not requested it. (People v. Milosavljevic (2010) 183 Cal.App.4th 640, 646.)
But the rule requiring a unanimity instruction has several exceptions, including " 'when the acts are so closely connected in time as to form part of one transaction' . . . or . . . if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (Jennings, supra, 50 Cal.4th at p. 679; see also People v. Stankewitz (1990) 51 Cal.3d 72, 100 (Stankewitz).) Both of these circumstances were addressed in People v. Williams (2013) 56 Cal.4th 630 (Williams), a case that, while not briefed by the parties, is the most recent Supreme Court case to discuss these exceptions. In Williams, the Court considered separate robbery offenses and rejected the defendant's contention that "the trial court erred by failing to instruct the jury that it must unanimously decide which robbery offense—the completed robbery of the wallets or the attempted robbery of the cocaine—supported" a special-circumstance allegation. (Id. at p. 682)
Williams first pointed out that the " 'criminal acts . . . took place within a very small window of time.' " (Williams, supra, 56 Cal.4th at p. 682.) Several decisions by the courts of appeal have relied on this consideration in the specific context of sexual offenses to conclude that a unanimity instruction was not required because the sexual acts were in close temporal proximity. (People v. Muniz (1989) 213 Cal.App.3d 1508, 1518 [forced oral copulation immediately before a beating]; People v. Gonzalez (1983) 141 Cal.App.3d 786, 792 [second act of vaginal penetration "within minutes"]; People v. McIntyre (1981) 115 Cal.App.3d 899, 910 [second forced oral copulation "within a few minutes during [the] sexual attack"]; People v. Mota (1981) 115 Cal.App.3d 227, 232 ["repeated and continuous acts of sexual intercourse within the relatively short period of approximately one hour, taking place in one location"].)
Williams also concluded that a unanimity instruction was not required because, in addition to temporal closeness of the acts, the "[d]efendant did not offer a defense based on a showing that he committed either the attempted robbery or the completed robbery, but not both." (Williams, supra, 56 Cal.4th at p. 682.) Instead, the defense simply argued that the defendant "was not present at the scene of the crime and therefore played no role whatsoever in any of the crimes committed there." (Ibid.) The justification for concluding that a unanimity instruction is unnecessary "when the defendant proffers the same defense to multiple acts [is that] a guilty verdict indicates that the jury rejected the defendant's defense in toto." (People v. Hernandez (2013) 217 Cal.App.4th 559, 572 (Hernandez); see also Stankewitz, supra, 51 Cal.3d at p. 100.)
Williams suggests that a unanimity instruction was not required here. As did the acts in Williams, the acts here occurred within a very short period of time, within moments of each other. John Doe testified that after he came out of the shower wearing a towel, Geston groped him by "touching [his] genitals through the towel and trying to pull the towel off . . . and then eventually getting the towel off." As John Doe resisted, Geston "pushed [him] into [his] mom's bedroom" and "pushed [him] on the bed." Geston then "put his mouth on [John Doe's] penis" for "less than a minute," and during this time was "trying to suck on [John Doe's] penis and just like grope [John Doe's] testicles." Nothing in John Doe's testimony indicated any breaks in this activity.
Furthermore, like the defendant in Williams, Geston presented no evidence or argument to support any legal differentiation between the two acts. He simply argued that he never molested John Doe and that John Doe was not credible or believable because his testimony was based on a faulty memory or arose out of anger that Geston had abandoned the family. Thus, the jury's guilty verdict indicated that the jury rejected Geston's defenses "in toto." (Hernandez, supra, 217 Cal.App.4th at p. 572.) Because the acts here were near simultaneous and no defense was presented to distinguish them, we are far from convinced that the trial court was required to give a unanimity instruction.
Geston relies heavily on People v. Brown (1996) 42 Cal.App.4th 1493 (Brown) in arguing that the trial court erred. He contends that "[t]he factual scenario in Brown is virtually the same as [here]." We disagree. In Brown, the prosecution charged two lewd acts that had occurred on two separate days. (Id. at pp. 1496-1497.) While the defendant was testifying, however, she changed her story about an incident on the second day, and she revealed for the first time that an additional act had occurred on that day. (Id. at p. 1497.) Although ultimately concluding that the error was harmless, the Court of Appeal determined that the trial court erred in not giving a unanimity instruction because the ambiguities in the defendant's testimony supported "discriminating between the two incidents such that the jury could find that [the defendant] committed one molestation but not the other." (Id. at pp. 1501-1502.) Here, there are no similar ambiguities in the victim's testimony, and Geston presented no evidence or argument to distinguish between the two incidents such that the jury could find that Geston committed one forcible lewd act but not the other.
Even if we were to overcome our skepticism and assume that the trial court erred by not giving a unanimity instruction, we would conclude that the error was harmless. We begin with two preliminary points. First, we agree with the Attorney General that we need not decide whether our review is governed by the federal constitutional standard, which requires reversal unless harmlessness can be established beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24), or by the state standard, which requires reversal only if there is a reasonable probability that the defendant would have received a more favorable verdict absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) We need not decide this question because, as we shall discuss, any error was harmless even under the heightened federal standard.
Second, we agree with Geston that our review for prejudice is not governed by the substantial-evidence test. A reviewing court should not find an instructional error harmless unless it can conclude " 'beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested [an] omitted element and raised evidence sufficient to support a contrary finding.' " (People v. McCloud (2017) 15 Cal.App.5th 948, 957.) Considering whether an instructional error is harmless "is essentially the reverse of a review for substantial evidence to support a conviction: '[U]nder [a substantial evidence review] . . . we would view the evidence in the light most favorable to the prosecution and presume in support of the judgment of the existence of any facts the jury might reasonably infer from the evidence[.' But] 'our task in analyzing the prejudice from [an] instructional error is whether any rational fact finder could have come to the opposite conclusion.' " (Ibid.)
Our agreement with Geston on this point, however, does little to advance his cause. This is because we know from the facts of his uncontested convictions that the jury rejected his only defenses—i.e., that he did not molest John Doe and that John Doe was not credible or believable—and he presented no evidence or arguments about what happened during the April incident to support contrary findings by the jury. In considering whether the failure to give a unanimity instruction resulted in prejudice, "[t]he 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." (Brown, supra, 42 Cal.App.4th at p. 1502.) Here, the answer to this question is no.
As to the first groping, Geston argues that the jury could have found that he "did not use force or fear to accomplish the fondling" or "use[] more force than necessary to accomplish the touching." This argument stems from the requirement that the amount of force needed for a conviction under section 288, subdivision (b), is force that is " 'substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' " (People v. Soto (2011) 51 Cal.4th 229, 242.)
Proof of this level of force is necessary to distinguish offenses under section 288, subdivision (b) from offenses under 288, subdivision (a), which requires proof only of the lewd act itself. (See People v. Griffin (2004) 33 Cal.4th 1015, 1026.)
There is no reasonable doubt that the jury believed that Geston's groping John Doe's testicles while removing the towel was accomplished by force substantially different from or substantially greater than that necessary to accomplish the lewd act itself. Geston did not simply fondle John Doe's testicles. He groped them while removing John Doe's towel and, once the towel was off, pushed John Doe into a bedroom and continued to molest him while he resisted. This evidence describes greater force than was necessary for Geston to have merely fondled John Doe, and no contrary evidence was presented.
In light of this conclusion, we need not decide whether fear was also used to accomplish the groping. --------
As to the second groping, Geston argues that John Doe's testimony was that he (Geston) "was 'trying' to grope [John Doe's] testicles," leaving the possibility that the jury might have had a "doubt whether the touching was successful." According to Geston, the jury could have believed that his only touching was accomplished by using "appellant's mouth." Again, we are unpersuaded.
To begin with, John Doe's actual testimony was that during the oral copulation Geston was "[l]ike trying to suck on my penis and just like grope my testicles." Given that Geston was convicted of oral copulation and was found to have had his mouth on John Doe's penis, we know that the word "trying" was not used to describe an unsuccessful attempt. Instead, it was used to explain what Geston was actually doing while John Doe was attempting to stop it. Furthermore, there can be no reasonable doubt that the jury believed Geston's actions included a forcible lewd touching since the established facts are that Geston successfully orally copulated John Doe, John Doe described Geston's action as a "grope" rather than a more benign touch, John Doe was resisting as he was being molested, and Geston presented no evidence or argument to contradict John Doe's description of the incident. Under these circumstances, it would have been nothing less than fantastical for the jury to have believed that Geston, while forcibly orally copulating John Doe as he resisted, was groping thin air without making any contact with John Doe's body. (See People v. Martinez (1995) 11 Cal.4th 434, 442 [a lewd act is the touching of any body part of a minor to arouse the sexual desires of either the defendant or the child].)
Geston was not prejudiced because the jury could not have found that Geston committed one of the lewd acts but not the other.
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.