Opinion
A143092
05-31-2017
THE PEOPLE, Plaintiff and Respondent, v. SERGIO OSEJO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC080717A)
Defendant Sergio Osejo was convicted by a jury of committing multiple sexual offenses against 13-year-old Eliana Doe and raping A.M. He contends the court's failure to suppress evidence seized pursuant to a broad warrant to search his Facebook account violated his Fourth Amendment rights and that he was prejudiced by the resulting admission of Facebook messages he exchanged with other underage girls. Osejo also contends his attorney rendered ineffective legal assistance by failing to lay a proper foundation for impeachment evidence, the court failed to give required instructions on unanimity and reasonable mistake of fact, and his sentence violates the proscription against multiple punishment for offenses arising from an indivisible course of conduct.
We agree that in the context of the application for the search warrant, the retrieval and admission of Osejo's Facebook messages with teenage girls other than Eliana violated his constitutional right to be free from unreasonable searches and seizures. We are persuaded beyond a reasonable doubt that the improperly admitted evidence had no effect on the convictions for Osejo committing lewd or lascivious acts on a child under 14 under Penal Code section 288, subdivision (a). But, as we shall explain, we cannot reach the same conclusion as to additional counts charging Osejo with violations of sections 288, subdivision (b), 288.3, and 261, subdivision (a)(2). We are therefore compelled to reverse Osejo's conviction in part. To the extent not rendered moot by this determination, Osejo's remaining claims are without merit.
Unless otherwise noted, further statutory citations are to the Penal Code.
BACKGROUND
Prosecution Case
Eliana
Eliana was 13 years old in October 2013, when Osejo first contacted her on Facebook, but told Osejo she was 14. Osejo was 23, but told Eliana he was 18. They began exchanging frequent Facebook messages and phone calls.
Osejo asked Eliana several times to "hang out" with him. She refused at first, but eventually agreed. Eliana's 15-year-old cousin Rebecca went with her the first time they met in person. The girls snuck out of Eliana's house at night without telling Eliana's parents. Osejo picked them up in his car at a nearby street corner and drove them to a place on a hill with a nice view, later returning them to the same corner.
Eliana next met with Osejo on January 20, 2013. She testified that they did not discuss having sex when they arranged the encounter, but their Facebook conversation that night was heavily laced with sexual commentary, including what appears to be joking discussion about Eliana arranging a "threesome" for Osejo's birthday and Osejo showing her his penis over FaceTime and becoming "running buddies or fucking buddies either way we lose weight! Lmao[.]" Eliana told Osejo she was "scared to fuck" because she had heard it hurt. He responded "it's better if I lick your pussy a little bit to get it wet then I put it in so it's not rough," and they bantered, sprinkling their online conversation with "lol's," "lmfao's" and "ahaha's," comments about the size of Osejo's penis, Eliana's sexual orientation, and whether Eliana was into "crystal." Osejo suggested Eliana "kick it with me in the car for like 20 mins" to "[j]ust talk hug you (sic), give you a kiss on the cheek." They agreed to meet outside Eliana's house.
It was after midnight when Eliana snuck out of the house through a window. Osejo picked her up at a nearby corner, as before, but this time they parked about a block from Eliana's house. Osejo told Eliana to get in the back seat, started kissing her and pulled down her pants and underwear. Eliana pulled her underpants back up, but Osejo pulled them down again and penetrated her vagina with his penis. After about a minute Eliana told him it was starting to hurt and he withdrew. They both pulled their pants up and talked.
After a while, they resumed kissing and Osejo asked Eliana if she wanted to try having intercourse again. Eliana agreed. They had intercourse until Osejo withdrew. When Eliana asked him why he stopped he said he had ejaculated in her, and that he would get her a PlanB pill.
The following day, Osejo and Eliana conversed about their encounter on Facebook. Eliana told Osejo "you left me some dark ass hickeys." Osejo responded "I had to mark my property ;)," they bantered about what they might do on their next sexual encounter, and they arranged for Osejo to procure a Plan B pill for Eliana. They met at a pier in San Francisco. Osejo gave her a bag containing a Plan B pill and a receipt in his name. The next day Eliana asked Osejo to drive her to a clinic to get an examination "cus of the shit that happened Friday." Osejo wrote back "Dummy we did it on Sunday!" Eliana responded she "could still get pregnant cus I'm ovulating." She reassured Osejo she had not told anyone they had sex and that she took the pill, and they joked about the possibility she was pregnant.
Eliana's mother noticed hickeys on Eliana's neck after the encounter, and punished her. Eliana testified her mother did not strike her, but in Facebook messages to Osejo she wrote her mother "smacked" her and was "scaring" her.
Osejo and Eliana continued exchanging suggestive and explicitly sexual messages through January and the first half of February. They next met on February 16, 2013, after Eliana called Osejo to suggest getting together. Shortly after midnight Osejo messaged her that he was outside her house. Eliana arranged blankets on her bed to make it appear she was sleeping in it and left through a window. Osejo picked her up at the same place as before, drove to a street near Westmoor High School and parked.
Osejo started kissing Eliana and got on top of her. She said she did not want to have sex and tried to push him away. Eliana testified he said "You like it when I force it in you. You like that shit" and penetrated her vagina with his penis. Eliana told him to stop because it hurt and tried again to push him away, but he continued until he tired. After a brief pause he withdrew his penis, turned Eliana onto her stomach facing the back of the car, penetrated her from behind and started having intercourse again. After a while he flipped her back onto her back and continued, holding her hands down so that she could not push him away. Eliana told him it was hurting a lot. He said he was almost done, and eventually he stopped.
When they were again clothed, Osejo's phone lit up with an incoming call. Eliana recognized the phone number and told Osejo it was her father's. He had discovered that Eliana was missing, found unfamiliar phone numbers on the family's house phone, and started calling and sending text messages that he was Eliana's father and to call him as soon as possible. Eliana testified that Osejo received at least two calls from her father but did not answer them.
Because of the phone calls Eliana was afraid to go home. She called her friend Jennifer to ask if she could stay with her, but Jennifer was not at home, so she agreed to go home with Osejo. They drove to his apartment in San Francisco, slept together on his bed and had sex again in the morning. Later Osejo dropped Eliana off at Jennifer's house, stopping on the way to buy her another Plan B pill.
Eliana spent the next three days with Jennifer. During that time they went out a lot, stayed at other people's houses and drank. On February 18 she learned there was a missing persons alert out on her. She took BART to her cousin Jacqueline's house, where Jacqueline called Eliana's mother, Valentina S., who arrived within minutes. Valentina yelled at her daughter, "What are you thinking? Where were you? Who were you with? What were you doing?" and "about where [Eliana] was and how she didn't like Jennifer and it was a stupid move." Eliana started crying.
At some point someone at the house told Eliana that Osejo was 23 years old, not 18 as he had told her. Eliana went outside with her cousin Mariela and told her she had been raped. Mariela repeated Eliana's allegation to her mother, Tracy B., who told Valentina.
B. is Eliana's godmother. Although Eliana refers to her as her "tia" and to Mariela as her cousin, the families are not related by blood. We use first names here in the interest of privacy and intend no disrespect by this practice.
Valentina and Tracy drove Eliana to the South San Francisco police station and then to San Francisco General Hospital. When they were at the hospital, Daly City police officer Jay Mulitauopele contacted Eliana and her family and asked them to come to the police station, where he interviewed Eliana in her parents' presence. A couple of days later Eliana was interviewed by social worker Miriam Wolfe and underwent a forensic examination by forensic nurse practitioner Diana Emerson.
The forensic examination revealed bruises and lacerations on Eliana's hymen and abrasions to the fosa navicularis, the portion of the vagina between the hymen and the labia, consistent with penetration. There was also a cluster of bruising and petechiae, micro-hemorrhages caused by capillaries ruptured by trauma, on Eliana's cervix. The injuries were fresh, but it was not possible to definitively date them. Petechiae typically resolve within two or three days but can last five or six days. The deep laceration to Eliana's hymen probably occurred within the week. Emerson estimated Eliana's injuries occurred two to six days before her examination. It could not be conclusively determined whether they were caused by consensual or nonconsensual sex.
Swabs from the examination tested positive for male DNA and seminal fluid, but DNA analysis failed to identify Osejo as the source of the fluids. A single sperm was observed on a cervical swab, but the sample size was too small for meaningful DNA comparison. Criminalist Annie Hoang testified that seminal fluid typically lasts in a vagina for two to three days but can last longer.
A.M.
A.M. is Eliana's cousin. She was a 14-year-old high school freshman when Osejo, using the alias Ricky Garcia, sent her a Facebook friend request in January or February 2011. A.M. told Osejo she was 14. He told her he was 17, but he was 20 or 21. He sent her numerous messages on Facebook, complimenting her looks and asking to meet in person.
Eliana's mother's sister is A.M.'s stepmother.
They first met in person at Hillsdale Mall in San Mateo. After sharing a meal they got in the back seat of his car in the mall parking lot and had consensual sex. Over the next six weeks they met to have sex five more times, always in Osejo's car at Central Park in San Mateo. All of these encounters were consensual and Osejo used a condom each time.
Their final sexual encounter was in April or May 2011. They began kissing in the backseat of Osejo's car, but when he tried to remove her jeans she told him to stop. Osejo became angry, cursed and forcibly pulled A.M.'s pants off. A.M. said she did not want to have sex and that she was seeing someone else. Osejo slapped her, took off the rest of her clothing and raped her, holding her hands down as she shouted at him to stop. He did not use a condom. When he finished he told her "he wanted to kick me out of the car and just have me go home naked," but he relented and drove her to a block away from her house.
A.M. did not report the rape. In 2013, after Eliana's experience with Osejo, Eliana's mother asked A.M.'s father to go to the police. A.M. was interviewed by Detective Harrison in connection with the Eliana investigation.
Valerie H.
Valerie H. was born in 1994. She met Osejo when she was 14 or 15 years old, five or six years before the trial, when she accompanied her friend Desi to his apartment. Desi knew Osejo as "Ricky Slick." Osejo pulled Desi into a bathroom and closed the door. Valerie heard Osejo yelling and Desi sobbing, so she banged on the door. Osejo opened it, grabbed Valerie and dragged her into a bedroom at the end of the hallway, locking the door behind him. He said, "You know you're going to give me some, right?" He threw her onto the bed, held her down and tried to remove her pants, but Valerie kicked him and fled with Desi.
Valerie did not go to the police at the time, but in February 2013 she recognized Osejo's photograph on a missing persons flyer for Eliana and called the contact number.
Defense Case
Osejo did not testify at trial, but a video recording of his police interview was entered into evidence and played to the jury. During the interview Osejo repeatedly denied that he had sex with Eliana and claimed she told him she was 18 years old.
Defense counsel argued, in essence, that Osejo had a romantic but nonsexual relationship with Eliana, lacked the lewd and lascivious intent required for the charged crimes, and believed she was 18. The sexually explicit Facebook messages the two exchanged were argued to be merely "fantasy stuff" that "never happened in real life." They kissed on January 20, but that was all. Eliana only insisted on getting a Plan B pill because she was inexperienced and unsure about what exactly had happened. Regarding the February 16 encounter, Eliana panicked when her father called Osejo's phone and she realized she was "busted" for sneaking out. Fearing her parents would punish her, she stayed at his apartment until she could go to Jennifer's. Defense counsel argued that Eliana's sex-related injuries were sustained during the three days she and Jennifer spent "partying in Oakland or wherever and drinking the 17th or 18th, one of those days."
As to A.M., defense counsel argued the sex was consensual or, at a minimum, that Osejo had a good faith belief that A.M. consented based on their prior history of multiple similar sexual encounters before the alleged rape. Counsel also noted that messages Osejo and A.M. exchanged on November 6, 2012, long after the alleged rape, showed their final sexual encounter was consensual. Osejo wrote, "somebody told me you was a ho, and I believed him, so I broke up with you. I'm sorry, A.M. You was the best I ever had." A.M. responded that she lost respect for Osejo when he broke up with her, "all that talk and rude messages," but she said nothing about rape.
Regarding Valerie, defense counsel argued that photographs of Osejo's apartment and testimony describing it were inconsistent with Valerie's description of the apartment. Counsel also pointed out that there was no evidence Osejo ever used the alias "Ricky Slick."
Verdict and Sentence
As to Eliana, the jury found Osejo guilty of two counts of unlawful contact with a minor (§ 288.3, subd.(a), counts 1 and 4); lewd or lascivious acts, vaginal intercourse with a minor under 14 (§ 288, subd. (a), count 2); lewd or lascivious acts, kissing a minor under 14 (§ 288, subd. (a), count 3); lewd or lascivious act with a minor under 14, vaginal intercourse in a vehicle by force (designated "the first time") (§ 288, subd. (b), count 5); lewd or lascivious act with a minor under 14, vaginal intercourse in a vehicle by force ("the second time") (§ 288, subd. (b), count 6); lewd or lascivious act with a minor under 14, vaginal intercourse in a vehicle by force ("the third time") (§ 288, subd. (b), count 7); and lewd or lascivious acts with a minor under 14, vaginal intercourse (§ 288, subd. a)("at the defendant's residence") (§ 288, subd. (a), count 11). The jury found Osejo guilty of raping A.M. (§ 261, subd (a)(2), count 12), but acquitted him of the Valerie H. rape charge (§ 220, subd. (a)(2), count 13) and found multiple victim allegations not true.
Counts 8, 9 and 10 were dismissed during trial.
The court imposed an aggregate sentence of 33 years in prison, composed of the aggravated eight-year term on count 11 (§ 288, subd. (a)(2)); two consecutive one-year terms on counts 1 and 4 (§ 288.3, subd. (a)); a consecutive two-year term on count 2 (§ 288, subd. (a)); a concurrent three-year term on count 3 (§ 288, subd. (a)) ; a consecutive ten-year term on count 5 (§ 288, subd. (b)); two concurrent eight-year terms on counts 6 and 7 (§ 288, subd. (b)); and a consecutive 11-year term on count 12 (§ 261, subd.(a)(2)). Osejo filed a timely appeal.
DISCUSSION
I. The Warrant
Osejo contends the denial of his motions to quash a warrant authorizing a search of his Facebook account and to suppress evidence seized pursuant to the warrant violated his federal and state constitutional rights to be free of unreasonable searches and seizures. (U.S. Const., 4th Amend.; Cal. Const., Art. I, § 13.) He is correct. The warrant was overbroad and the good faith exception to the exclusionary rule did not authorize the introduction of significant and prejudicial evidence seized pursuant to it.
A. Background
On March 12, 2014, Detective Harrison applied for a warrant for records from Osejo's Facebook account. His supporting affidavit described his training and experience in sex crimes investigations, including crimes against children. The "statement of probable cause" section described the investigation of Eliana's disappearance and her allegations against Osejo. It recounted that Eliana met Osejo through Facebook, exchanged Facebook messages with him between November 2012 and February 2013, and that messages in Eliana's account showed that they arranged to meet to have sex at least twice and later for Eliana to take a Plan B pill. The affidavit reported that Eliana said Osejo raped her on February 16, 2013, and that they had consensual sex three weeks earlier. It further stated that Osejo said he believed Eliana was 18 years old and denied having sex with her but admitted providing the Plan B pill, picking her up the night she ran away from home, and dropping her off the next day.
After describing the various categories of information Facebook can produce in response to a warrant, Detective Harrison concluded: "With the facts presented in this investigation, I believe that probable cause exists to support the search of Facebook, further described in APPENDIX B.[] I believe the listed search of Facebook for the records and information further described in APPENDIX A, would assist in providing additional information and evidence in this sexual assault investigation. In particular, the totality of messages between Eliana Doe and the defendant Sergio Osejo would provide further evidence as to the length and type of relationship these two individuals had." Appendix A listed numerous categories of data associated with Osejo's Facebook account including status updates, shares, notes, wall postings, pages, applications, photos and associated metadata, videos, future and past events, check-ins, privacy settings, friend listings with his friends' Facebook ID's, information about all Facebook groups to which he belonged and subscriber information for each group's administrator, private messages and IP logs.
Appendix B provides contact information for Facebook's Law Enforcement Response Team.
The magistrate issued the warrant as requested. Facebook produced 660 pages of information in response, of which some 29 pages involved communications between Osejo and Eliana. Osejo moved to quash the warrant and suppress evidence on the ground, inter alia, that the supporting affidavit did not set forth probable cause to justify such a broad search. Specifically, he argued the affidavit supplied probable cause only for Facebook communications between himself and Eliana between November 2012 and February 2013, and that, at a minimum, information obtained beyond those parameters should be suppressed.
The court denied the motion. It acknowledged that the affidavit specified messages between Osejo and Eliana, but reasoned that "once the doors opened" the warrant fairly encompassed evidence that "would be admissible to fully and properly characterize the sexual relationship between them," including evidence of uncharged sex offenses that would be admissible under Evidence Code section 1108.
Evidence Code section 1108, subdivision (a) provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Under Evidence Code section 1101, " (a) . . . . evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident. . . ."
Osejo renewed his motion to suppress before trial started, arguing a search warrant may not authorize a search broader than the facts supporting it and that the only support in this case was for communications between Osejo and Eliana. The court agreed the warrant was overbroad but, while noting the case was a close one, denied the motion under the good faith exception to the exclusionary rule established in United States v. Leon (1984) 468 U.S. 897 (Leon).
The Facebook documents included over 150 pages of messages between Osejo and teenage girls other than Eliana, including highly suggestive and overtly sexual conversations with nine other girls. The printouts were admitted under Evidence Code section 1101, subdivision (b) as evidence of Osejo's intent, lack of mistake, plan, and motive to contact and pursue underage girls for sexual activity.
B. Analysis
1. Probable Cause
Osejo does not dispute that the affidavit supporting the warrant supplied probable cause to search Facebook's records for his online conversations with Eliana. He contends, however, that the probable cause showing did not support the substantially broader search of virtually his entire Facebook account. We agree.
"The Fourth Amendment provides '[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .' (U.S. Const., 4th Amend.) This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. [Citation.] A similar guarantee against unreasonable government searches is set forth in the state Constitution (Cal. Const., art. I, § 13) but, since voter approval of Proposition 8 in June 1982, state and federal claims relating to exclusion of evidence on grounds of unreasonable search and seizure are measured by the same standard. [Citations.] 'Our state Constitution thus forbids the courts to order the exclusion of evidence at trial as a remedy for an unreasonable search and seizure unless that remedy is required by the federal Constitution as interpreted by the United States Supreme Court.' " (People v. Camacho (2000) 23 Cal.4th 824, 829-830.)
" ' "[C]ourts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." ' [Citation.] The same rule applies when deciding, in doubtful or marginal cases, whether the warrant's description of the place to be searched or the things to be seized is sufficiently specific." (People v. Frank (1985) 38 Cal.3d 711, 722 (Frank).) When, as here, the facts are undisputed, we exercise our independent judgment to determine whether the search was unreasonable within the meaning of the Fourth Amendment. (Id. at p. 726; People v. Leyba (1981) 29 Cal.3d 591, 596-597.) By the same token, whether a warrant describes the property to be seized with sufficient specificity is a question of law on which we make an independent judgment. (Frank, supra, at p. 725.)
" '[F]or the purpose of issuing a search warrant the standard of probable cause is 'whether the affidavit [1] states facts [2] that make it substantially probable [3] that there is specific property [4] lawfully subject to seizure [5] presently located [6] in the particular place for which the warrant is sought.' The first of these requirements is a precondition of all the others, and has been separately codified in our statutes: 'The affidavit or affidavits must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist.' [Citation.] [¶] . . . It is axiomatic that a warrant may not authorize a search broader than the facts supporting its issuance.' " (Frank, supra, 38 Cal.3d at pp. 727-728, quoting Burrows v. Superior Court (1974) 13 Cal.3d 238, 250.) Accordingly, " '[A] court cannot resort to facts outside the affidavit to determine whether it furnishes such reasonable cause.' [Citation.] Therefore, in the first instance, we look at the affidavit to determine whether the material sought is within the scope of the probable cause underlying the search warrant." (People v. Hepner (1994) 21 Cal.App.4th 761, 775-776.)
As noted, Osejo acknowledges that Detective Harrison's affidavit provided probable cause to search all Facebook messages between himself and Eliana. This is unquestionably so, because the affidavit revealed that he and Eliana met, conversed, and arranged their sexual encounters on Facebook. But nothing in the warrant or application purports to assert probable cause to search and seize Osejo's entire Facebook account, including his messages with individuals other than Eliana, his status update history, his privacy settings, the history of items he publicly shared with other Facebook users, all the Facebook groups he belonged to and the identities of their creators and administrators, the past and future events he posted, the video files associated with his account, all of the locations from which he had "checked in" to Facebook, the IP addresses of every computer he had ever used to connect to Facebook, or any of the other categories of data listed in the warrant. No facts in the affidavit supported this virtually unlimited search of Osejo's Facebook account.
The People argue the warrant's broad scope is supported by Harrison's statement that, based on his training and experience, the Facebook records and information "would assist in providing additional information and evidence in this sexual assault investigation." We disagree. The affidavit provides no factual basis, derived either from Harrison's expertise or the investigation, to believe Osejo's private Facebook messages with anyone other than Eliana would contain information and evidence relevant to the sexual offenses against her. Nor does it provide reason to believe such evidence might be found in categories of information sought other than Osejo's message history. Harrison's affidavit asserts that, "[w]ith the facts presented in this investigation" he "believe[s] that probable cause exists to support the search of Facebook," but belief unsupported by a factual basis for it does not establish probable cause. "It is a long established rule that a search warrant affidavit containing only the opinions and conclusions of the affiant, without disclosure of the underlying facts, will not constitute 'probable cause supported by oath or affirmation' as required by the Fourth Amendment of the United States Constitution." (People v. Smith(1986) 180 Cal.App.3d 72, 86; see Nathanson v. U.S. (1933) 290 U.S. 41, 47 [probable cause for warrant must be based on facts or circumstances; "mere affirmance of belief or suspicion is not enough"].)
Although police knew about A.M. and possibly three or four other girls Osejo had contacted on Facebook months before the warrant was executed, the warrant said nothing about potential victims other than Eliana. The prosecutor admitted at the first suppression hearing "that's something we could have and should have given additional information on."
The warrant is problematic for another reason: neither the affidavit nor the warrant described the items to be seized with the particularity the Constitution requires. "The warrant clause of the Fourth Amendment provides that no warrant may issue except those 'particularly describing the place to be searched, and the persons or things to be seized.' " (People v. Kraft (2000) 23 Cal.4th 978, 1041.) The requirement of particularity " 'is designed to prevent general exploratory searches which unreasonably interfere with a person's right to privacy. . . . [T]his requirement is held to be satisfied if the warrant imposes a meaningful restriction upon the objects to be seized.' " (Frank, supra, 38 Cal.3d at p. 724; Andresen v. Maryland (1976) 427 U.S. 463, 479-480.) For this reason, "the following descriptions of property have been held to be constitutionally intolerable: a listing of numerous documents by general categories, such as ' "checks, check stubs . . . and bank statements" ' followed by ' "[a]ny and all other records and paraphernalia connected with" ' the business of the suspect [citation]; ' "personal goods and property, to wit, certain paraphernalia." ' [Citation.] 'Evidences of indebtedness' of the suspect, his telephone bills, and '[a]ny papers showing names and addresses' of his associates [citation]." (Burrows, supra, 13 Cal.3d at p. 249.)
Burrows is illustrative. It involved a warrant to search the office of an attorney accused of misappropriating a client's funds for "all books, records, accounts and bank statements and cancelled checks of the receipt and disbursement of any money and any file or documents referring to [four named individuals]." (Burrows, supra, 13 Cal.3d at pp. 241, 248.) The court unanimously held the search unreasonable because the warrant's description of the things to be seized was so broad as to authorize a general search and seizure of petitioner's financial records without regard to the specific persons involved in the allegedly improper transactions.
Similarly, in Aday v. Superior Court (1961) 55 Cal.2d 789 (Aday) the court invalidated a warrant to search for 17 general categories of documents such as checks, sales records and records connected with the petitioner's business in addition to two specific books and Aday's 1959 income taxes returns. The court unanimously held the warrant was fatally overbroad as to everything but the books and tax returns: "Articles of the type listed in general terms in the warrant are ordinarily innocuous and are not necessarily connected with a crime. The various categories, when taken together, were so sweeping as to include virtually all personal business property on the premises and placed no meaningful restriction on the things to be seized. Such a warrant is similar to the general warrant permitting unlimited search, which has long been condemned." (Id. at p. 796.)
We see no principled way to distinguish the warrant at issue here from the situations in Burrows and Aday. The Facebook warrant described the numerous categories of user data routinely stored in Facebook user accounts, but, with the exception of Osejo's messages with Eliana, failed entirely to identify the items to be searched for—other than, in the most general of terms, anything that might serve as evidence of the charged offenses. In effect, then, it gave police an unrestricted license to search virtually all of the data in Osejo's Facebook account. That is precisely the sort of "general, exploratory rummaging in a person's belongings" the Fourth Amendment was intended to forestall. (Coolidge v. New Hampshire (1971) 403 U.S. 443, 467; Andresen v. Maryland, supra, 427 U.S. at p. 480.)
The People assert the broad scope was justified because police "had no way of knowing what information was stored in the Facebook records or where it might be stored, or of describing the items to be seized in a more precise manner." This argument does more to confirm than refute Osejo's point that the warrant failed to identify what the government was looking for. The warrant was both fatally unspecific and substantially broader than what was justified by the probable cause set forth in the affidavit. The court thus erred when it declined to limit its scope to evidence relevant to Osejo's communications with Eliana and suppress all other evidence seized from his Facebook account. (See Aday, supra, 55 Cal.2d at p 797 [overbroad warrant may be upheld as to valid portions where there is probable cause for some but not all items seized].)
2. Good Faith Exception
We next consider whether the evidence was properly admitted under the good faith exception to the exclusionary rule stated in Leon, supra, 468 U.S. 897. Where, as here, a warrant issued by a neutral magistrate is invalid, the inquiry is "whether a reasonably well-trained officer would have known the search was illegal despite the magistrate's authorization." (Id. at pp. 922-923, fn. 23.) It is the government's burden to establish objectively reasonable reliance on an invalid warrant. (People v. Willis (2002) 28 Cal.4th 22, 36-37; People v. Camarella (1991) 54 Cal.3d 592, 596.)
The standard of objective good faith requires that officers "have a reasonable knowledge of what the law prohibits." (Leon, supra, 468 U.S. at p. 919, fn. 20.) " '[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness, [citation], for 'a warrant issued by a magistrate normally suffices to establish' that a law enforcement officer has 'acted in good faith in conducting the search.' [Citation.] Nevertheless, the officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, [citation], and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued." (Id. at p. 922, footnotes omitted.) Suppression thus remains an appropriate remedy if a warrant is "so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid," or if the warrant is based on an affidavit " 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.' " (Id. at p. 923.) "[T]he test in Fourth Amendment cases is not the good faith of the individual officer in the field, but the good faith of the law enforcement agency of which he or she is a part." (People v. McNeil (2002) 96 Cal.App.4th 1302, 1308; Miranda v. Superior Court (1993) 13 Cal.App.4th 1628; People v. Ivey (1991) 228 Cal.App.3d 1423.)
A reasonably well-trained officer would have recognized that the extraordinarily broad warrant at issue here, unless viewed as authorizing only search for and seizure of evidence directly bearing on Osejo's communications with Eliana, failed to "particularize . . . the things to be seized." Indeed, as Osejo observes, no reasonable officer would have thought the warrant described the items to be seized with particularity because it did not describe them at all. Nor would a reasonable officer believe the warrant's showing of probable cause supported an unfettered search and seizure of what seems to be all of the data stored in Osejo's Facebook account, whether or not reflective of Osejo's communications with Eliana. Accordingly, the court erred when it ruled the warrant was "saved by Leon."
3. Prejudice
The question remains whether the error requires reversal. Before federal constitutional error can be held to be of no consequence, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) " 'The beyond-a-reasonable-doubt standard of Chapman "requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." [Citation.] "To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." [Citation.] Thus, the focus is on what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is "whether the . . . verdict actually rendered in this trial was surely unattributable to the error." ' " (People v. Pearson (2013) 56 Cal.4th 393, 463.)
That cannot be said here for most of the crimes of which Osejo was convicted. To be sure, even if we disregard the improperly obtained evidence we have no doubt the jury would have found Osejo guilty of the charges under section 288, subdivision (a), which did not require that he knew or should have known Eliana's age and to which reasonable mistake is not a defense. (§ 288, subd. (a) ; People v. Olsen (1984) 36 Cal.3d 638, 647-649.) Eliana's testimony about her sexual encounters with Osejo in January and February was irrefutably confirmed by their properly admitted Facebook messages, as well as Osejo's receipt for Eliana's Plan B pill. In light of the properly admitted evidence, there is no credible possibility the jury would have acquitted him of those charges had the other Facebook evidence been suppressed.
Section 288, subdivision (a) provides that "any person who willfully and lewdly commits any lewd or lascivious acts . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 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 by imprisonment in the state prison for three, six, or eight years."
But other aspects of the verdict are more troubling. Osejo was convicted of two counts of contacting or communicating with a minor with the intent to engage in lewd and lascivious acts (§ 288.3 subd. (a), counts 1 and 4). Unlike section 288, subdivision (a), this offense requires that he knew or reasonably should have known Eliana was a minor. The Facebook records of Osejo's online conversations with a succession of young girls around Eliana's age was damning on that score. A representative sample of those conversations included Osejo's online flirtation with Daniela G., who told Osejo she was 13 years old ["5 in the morning! And I'm calling you babybeyyyybeyyyy oh yeahhhh! Let's talk about sex baby! Let's talk about you and me! Let's talk about boxing gloves, let's talking making love! Let's talk about you on top of me and going down! Yeahhh ;)"]; Silvana M. [Hey do you think I'm a perv stalker?," "Let's kick it silvana You're the most Beautyfuk [sic] girl I ever seen," and, when she told him to stop contacting her, "Fuck you Stupid Cunt Bitch!"]; Jenny M. ["Are you a virgin? :0"]; 14-year-old Gloria P. ["so what school you go to," "cute ass girl," "what's your #"]; 15-year-old Milly B. ["what school you go to?" "want to kick it sometime or you got a bf?"] Jasmine R. [how old r yhu? Wht skul yhu go too?" "want to kick it sometime?"]; 14-year-old Ruby L ["aha you smoke and drink or you only suck tig ol biggies Lmao okay I'll stop," "Oh dope are you a virgin too?," "Thats koo I don't like females my age they be boring, freshman Yay," "You be sneaking out of the house tho? I know yo a bad girl aha," "So do you want to kick it this week?" "aha no make me! You can force me by making me your sex slave! :0 lol jk ;)" ] and 14-year-old Gloria G. ["So we just drinking and smoking," "Let's kick it I got the car"]. All of these conversations took place in November and December 2012, around the time Osejo started talking with Eliana on Facebook.
"Every person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit an offense specified in Section . . . 288 . . . involving the minor shall be punished by imprisonment in the state prison for the term prescribe for an attempt to commit the intended offense." (§ 288.3, subd. (a).)
The prosecutor quoted extensively from these messages in his summation and urged the jury to use them "to decide what [Osejo] was trying to do in this case. [¶] So use those other Facebook messages to decide whether or not he was mistaken, like he just happened upon these girls and didn't know they were underage? Of course not." He used them to hammer the point that Osejo lied about his own age "every time he's talking to a girl who says she's 13 or 14 or 15 . . . because he knows, he's very aware if he's too old, these girls are going to say, 'hey, no, you're 22. You're too old for me.' " He stressed the overtly, even graphically sexual nature of Osejo's conversations with these other girls, his repeated comments about using drugs or alcohol "so that you can lower her inhibitions and more easily manipulate her," and his questions about their ages, sexual experience and whether they had boyfriends. He reiterated in rebuttal that the messages showed Osejo "sought out young girls, and he wanted to have a sexual relationship." And no wonder. Those messages were immensely powerful evidence of his point that Osejo was purposefully trolling Facebook for adolescent girls to exploit sexually and, by extension, that he had to know Eliana, too, was a minor.
Without a doubt, the jury might well have found this to be the case without the improper character evidence. But the record does not compel that conclusion beyond a reasonable doubt. As the prosecutor emphasized in his summation, at the time of their encounters Eliana was 4'9" with braces on her teeth; according to her testimony she (untruthfully) told Osejo she was 14; and they bantered online about her homework, sneaking out of her parents' house, and getting grounded. But, while Osejo did not testify, the jury viewed the videotaped police statement in which he said Eliana told him she was 18. Defense counsel argued that if Osejo were lying to Detective Harrison about that he would not have also admitted that he bought Eliana the Plan B pill or, as the evidence showed, cooperated with the police search for Eliana after she was reported missing.
Would the jury have believed any of that without the improper Evidence Code section 1101 evidence? Maybe not. Probably not. But we cannot say beyond a reasonable doubt that the properly admitted evidence was so strong on this point that the jury would have found Osejo knew or should have known Eliana was a minor without it. The character evidence left no room for the jury to doubt Osejo's pattern of seeking out underage girls for sex. It foreclosed any question as to whether Osejo knew Eliana was a minor. And it was enormously prejudicial in the most general sense because it portrayed him as a depraved offender casting a wide net for any underage girl who might be persuaded to have sex with him. On this record, we cannot find the erroneously admitted evidence " ' unimportant in relation to everything else the jury considered on the issue in question.' " (People v. Pearson, supra, 56 Cal.4th at p. 463.)
Because we are bound to the record, we have no ability to assess whether Eliana's physical appearance a year later at trial supported or undermined the defense contention that Osejo believed her to be 18.
Nor are we convinced beyond a reasonable doubt that the evidence seized and admitted in violation of the Fourth Amendment did not contribute to Osejo's conviction for raping A.M. (§ 261, subd. (a)(2), count 12) or the jury's findings pursuant to section 288, subdivision (b) that three of the sexual offenses against Eliana were accomplished through force, violence or duress (counts 5-7).) The elements of section 288, subdivision (b) differ from those of section 288, subdivision (a) in that, for the former, the lewd act is accomplished "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. . . ." (§ 288, subd. (b).) Similarly, for forcible rape the act of sexual intercourse must be accomplished "by means of force, violence duress, menace, or fear of immediate and unlawful bodily injury." (§ 261, subd. (a)(2).) Osejo's properly admitted Facebook messages with Eliana provided compelling proof that they had sex, but not that it was nonconsensual. The evidence from the forensic exam was also inconclusive. Proof of force and duress thus rested almost exclusively on the complaining witnesses' testimony.
Under section 288, subdivision (b), Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."
"Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: . . . (2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another." (§ 216, subd. (a)(2).)
This explains why the prosecutor turned to Osejo's Facebook conversations with other young girls as proof he used force or duress with Eliana and A.M. Addressing the rape charge concerning A.M., the prosecutor argued that Osejo "wouldn't take no for an answer. [W]hen I go through other texts later, you're going to see how he reacts when he doesn't get his way when he thinks he's interested in someone and he wants to have sex, how he blows up and uses foul language and curses them and just can't handle it when these girls don't want to have sex with him. He picked up this thread again in rebuttal, discussing Osejo's Facebook messages to Silvana: "[H]e's poking her, you know, over the course of weeks and over a month. Trying to get her to hook up, hook up and hang out, and when she won't what does he say, 'die fucking cunt bitch.' [¶] You think—you think given Valerie's testimony and you think given [A.M.]'s testimony and you think given how he behaves on Facebook is so a—is it a stretch to believe that he's going to overreact, and he would react with violence if he doesn't get what he wants? Of course not." (Italics added.) We have carefully reviewed the erroneously admitted evidence and are convinced, as the prosecutor hoped, that it added significant weight to the prosecutor's depiction of Osejo as a violent bully who uses force and duress to get sex.
The California Law Revision Commission has cautioned that character evidence "tends to distract the trier of fact from the main question of what actually happened on the particular occasion and permits the trier of fact to reward the good man and to punish the bad man because of their respective characters." (Cal. Law Rev. Com. Comment to Evid. Code, § 1101.) In this case the wrongly admitted character evidence was particularly dangerous because it was a devastating indictment of Osejo's character in general, and, specifically, his predatory behavior towards young women. Beyond that, it substantially bolstered the prosecution's showing that he knew Eliana was underage and that he had forcible sex with both girls. On this record, we cannot find the error was harmless beyond a reasonable doubt. The section 288, subdivision (b) convictions (counts 3, 5, 6 and 7) must therefore be reduced to reflect a conviction of the lesser included offense of violating section 288, subdivision (a) (see People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321). The convictions for violating section 261, subdivision (a)(2) (rape, count 12) and section 288.3, subdivision (a) (unlawful contact with a minor, counts 1 and 4) must be reversed.
Because we reverse the convictions on these charges, we do not address Osejo's arguments that he was entitled to a mistake of fact instruction on the unlawful contact with a minor charges, that his sentence on those counts should have been stayed under section 654, and that the imposition of the aggravated 11-year term on count 12 was an abuse of discretion.
II. Ineffective Assistance of Counsel
Osejo contends his trial attorney provided constitutionally ineffective assistance by failing to lay an adequate foundation for the admission of allegedly inconsistent prior statements by Eliana and A.M. "To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citations.]" (People v. Samayoa (1997) 15 Cal.4th 795, 845.) "If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient." (People v. Kipp (1998) 18 Cal.4th 349, 366.)
Here, Osejo asserts his attorney tried but, due to procedural errors, failed to introduce into evidence excerpts from transcripts of Eliana's initial interview with Officer Mulitauopele, her subsequent interview with social worker Wolfe, and A.M.'s interview with Detective Harrison. Specifically, he argues the excerpts were admissible as prior inconsistent statements and would have contradicted a number of points of the complaining witnesses' testimony, thereby undermining their credibility. We need not determine whether defense counsel should have managed to get the statements into evidence because Osejo has not shown a reasonable probability their admission would have affected the verdict.
First, Osejo maintains defense counsel ineptly failed to introduce a transcript of Eliana's statement to police that, after they had sex in his car, Osejo received a text message from her father and responded that he was not with her. He contends this statement would have cast doubt on Eliana's credibility because at trial she testified that Osejo's phone lit up with multiple calls, rather than texts, and that he let the phone ring without answering them. But Eliana's father testified that he both called and texted Osejo's number that night, numerous times. The minor inconsistency between Eliana remembering seeing a phone light up with incoming texts as opposed to incoming calls, a detail that could readily become blurred in memory, would have been of minimal if any impeachment value. Moreover, Eliana was not asked whether Osejo responded to any text messages.
The second excerpt was equally benign. At trial Eliana testified that the first time she went out with Osejo he drove her to a place with a nice view. But when social worker Wolfe asked her about the alleged rape, Eliana said "Well, I called him 'cause I wanted to go out. And then, time must have passed me, and I was wondering—'Cause I didn't have permission to go out, so I was gonna sneak out. 'Oh let's do something, let's go places, let's go'—Cause the last time I hung out with him, he took me out to, like, this view in Daly City, and it was nice, and we were just chillin' and talkin' for a while." Osejo asserts this was valuable impeachment evidence because Eliana testified that the "last time" she had seen Osejo, their second meeting and the first night they had sex, he drove them a block from her house and parked where she could see "houses and streets and cars." Apparently, then, Eliana's comment to Wolfe referred to the first time Eliana met Osejo, with her cousin Rebecca, rather than their second encounter. But again, this is hardly the kind of statement a jury would construe as a significant falsehood rather than an understandable memory lapse, and would have borne no particular import as to Eliana's credibility.
In short, taken individually or together, it is not reasonably possible that the exclusion of these allegedly inconsistent statements, viewed in context of the record as a whole, had any effect on the jury's determinations. Osejo's ineffective assistance of counsel claim fails.
Osejo also faults his counsel for failing to introduce A.M.'s statements to Detective Harrison to the effect that, before the alleged rape, she just "hung out" with Osejo, failing to mention their earlier consensual sexual encounters. We do not address this argument in light of our determination in Section I of this opinion that the sole conviction concerning A.M. must be reversed.
III. Unanimity Instruction
Osejo was charged in count 2 with having vaginal intercourse with Eliana on January 21, 2013, and in count 3 with kissing her the same night, in violation of section 288, subdivision (a). He contends the court was required to give a sua sponte unanimity instruction on those counts because Eliana testified to "two separate and discrete incidents of kissing . . . and two separate and discrete incidents of vaginal intercourse" that night, and the prosecutor did not make a clear election as to which acts he was relying on. He maintains the court's failure to instruct on unanimity violated his right to a unanimous conviction under the California Constitution and mandates reversal. We disagree.
As Osejo correctly notes, the jury was instructed on the requirement that they unanimously agree which act he committed with respect to counts one and four, contacting a minor with the intent to commit lewd acts, but the instruction was explicitly restricted to those counts.
A criminal defendant has a constitutional right to a unanimous jury verdict. (Cal. Const., art. I, § 16.) Where the evidence shows that more than one offense occurred, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed that it must unanimously agree on at least one of the offenses involved in order to convict. (People v. Meyer (1988) 197 Cal.App.3d 1307, 1310; People v. Madden (1981) 116 Cal.App.3d 212, 219.) The danger in failing to give a unanimity instruction in such cases is that the jury might return a conviction even though not all the jurors are convinced beyond a reasonable doubt that the defendant committed the same criminal act. (People v. Gunn (1987) 197 Cal.App.3d 408, 412; People v. Epps (1981) 122 Cal.App.3d 691, 701-703.) While there is a split of opinion as to the correct standard for harmless error, we agree with both parties that the harmless beyond a reasonable doubt standard applies because such error implicates federal constitutional rights. (See People v. Hernandez (2013) 217 Cal.App.4th 559, 576-577.)
The principles peculiarly relevant to the unanimity requirement in the present circumstances were addressed in People v. Schultz (1987) 192 Cal.App.3d 535. The defendant was convicted of two counts of forcible oral copulation over a seven-hour period but evidence showed more than two such acts. As here, the defendant argued the court erred in failing to instruct sua sponte that the jurors must agree on the specific act constituting the charged crime. (Id. at p. 538.) Disagreeing, the court explained:
"It is well established that a trial court is not obligated to give an instruction if the evidence presented at trial is such as to preclude a reasonable jury from finding the instruction applicable. [Citation.] This principle applies to the trial court's obligations in giving both requested and sua sponte instructions [citation] and is implicitly based on the concern that the giving of unnecessary instructions—even if abstractly correct—increases the potential for jury confusion. [Citations.] The 'legalese' of many standard jury instructions is difficult enough for jurors to understand without their being forced to deal with additional instructions having no application to the facts of the case.
"Applying this principle, numerous cases have concluded that the failure to give [a unanimity instruction] does not require reversal unless 'the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.' [Citations.] Some cases resolve the issue by concluding that where the facts provide no basis for juror disagreement, it is not error to fail to give CALJIC No. 17.01" while "[o]thers treat the failure to instruct as error but deem it harmless." (Schultz, supra, 192 Cal.App.3d at p. 539; cf. People v. Brown (1996) 42 Cal.App.4th 1493, 1500-1502 [following Schultz but finding, based on contradictions in the victim's testimony, that instruction was required but its omission was harmless beyond a reasonable doubt]). The question, then, 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. Brown, supra, 42 Cal.App.4th at p. 1502.)
Here, whether we approach the question as whether the instruction was necessary or whether its omission was prejudicial, the answer is no. Once the jurors decided they believed Eliana's account, there was nothing in the evidence or argument from which they could have distinguished between the various acts she testified about to find that Osejo had intercourse with or kissed her one time but not the other. Nor did his defense to those charges—essentially, that he and Eliana had a romantic but nonsexual relationship—provide a rational basis for the jury to find him guilty of fewer than all of the acts Eliana described. Accordingly, his claim fails.
IV. Sentencing
Osejo was convicted of three separate violations of section 288, subdivision (b) (now reduced to section 288, subdivision (a) violations, see Section I, infra) based upon having sex with Eliana in his car on February 16. The prosecution broke the conduct into counts 5, 6, and 7 because Eliana testified that she and Osejo changed position twice during the sexual encounter, and at sentencing argued Osejo should receive consecutive terms for each count. The court disagreed. It explained: "[T]he case law . . . pretty clearly indicates that absent a concrete and discrete showing of an opportunity to reflect and to consider those actions, even though there is no finite or defined period of time that is required, absent such a reflection, I am without authority to find that it is—or that it constitutes separate occasions." It sentenced Osejo to the aggravated 10-year term on count 5, to be served consecutively, and concurrent 8-year midterms on counts 6 and 7.
Section 654 provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Osejo asserts the court's finding that the offenses did not "occur[] on separate occasions for purposes of imposing consecutive sentences" required it to stay the sentences on counts 6 and 7 under section 654. Not so. Section 654 does not preclude punishment for each sex crime committed during a continuous attack, even where closely connected in time and where the defendant repeated identical sex offenses in sequence. (People v. Harrison (1989) 48 Cal.3d 321, 336) When " '[n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other and none was incidental' to any other," section 654 does not apply. (Ibid.) The court's "no opportunity to reflect" finding, made for purposes of deciding between concurrent and consecutive terms (see, e.g., People v. Garza (2003) 107 Cal.App.4th 1081, 1091), was not determinative to that inquiry.
He concedes that the imposition of concurrent terms on these counts rather than staying them pursuant to section 654 makes no practical difference to his sentence. --------
DISPOSITION
The judgment is modified as follows. The convictions for violating section 261, subdivision (a)(2) (rape, count 12) and section 288.3, subdivision (a) (unlawful contact with a minor, counts 1 and 4) are reversed. The convictions for violating section 288, subdivision (b) (counts 3, 5, 6 and 7) are modified to reflect convictions for violation of section 288, subdivision (a). The judgment is otherwise affirmed and the case remanded to the trial court.
/s/_________
Siggins, J.
We concur:
/s/_________
McGuiness, P.J.
/s/_________
Pollak, J.