Opinion
C078928
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. IGOR PONOMARENKO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F04946)
A jury found defendant Igor Ponomarenko guilty of eight counts of committing a lewd and lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a); counts one [victim Y.P.], two and three [victim V.P.], five [victim J.P.], six [victim J.S.], eight [victim L.S.], nine [victim V.S.], and ten [victim S.P.]), and found true an allegation defendant committed a sex offense against two or more victims within the meaning of section 667.61, subdivision (e)(4).
Further unspecified statutory references are to the Penal Code.
The jury found defendant not guilty of one count of committing a lewd act (count seven [victim J.S.]) and deadlocked on one count of sexual penetration of a 10-year-old child (§ 288.7, subd. (b); count four [victim J.P.]), and a mistrial was declared as to that count.
Sentenced to 30 years to life in state prison, defendant appeals, contending the trial court prejudicially erred in failing to appoint a "domestic violence counselor" for the complaining witnesses, discharging a juror during trial, precluding defendant's trial counsel from referencing the Salem Witch Trials or the "McMartin case" during her closing argument, and failing to properly instruct the jury on unanimity. Finding no error, we shall affirm.
Defendant's 30-year-to-life sentence is comprised of 15 years to life on count two, a consecutive 15 years to life on count five, and concurrent terms of 15 years to life on counts one, three, six, eight, nine, and ten.
FACTUAL AND PROCEDURAL BACKGROUND
J.S., L.S., and V.S. are siblings. Their older sister, Tamara, is married to defendant. They married in 2007. Y.P., V.P., and J.P. are sisters. Their mother is the sister of J.S., L.S., and V.S.'s father. S.P. is the cousin of J.S., L.S., V.S., Y.P., V.P., and J.P. Her mother is the sister of J.S., L.S., and V.S.'s mother. Y.P. and J.S. are the oldest of the complaining witnesses; both were born in 1997. The family is very close, attends the same church, and frequently celebrates at each other's homes.
In January 2013 Y.P., then a sophomore in high school, told one of her former middle school teachers that defendant molested her and two of her sisters several years earlier. The teacher immediately filed a report with child protective services and contacted the middle school principal, who in turn reported the matter to the Citrus Heights Police Department.
The next day, Officer Dwight Turner, a sworn peace officer with the Citrus Heights Police Department, spoke separately with Y.P., V.P., and J.P. The purpose of the interviews was to determine if a crime had occurred. The girls' mother, aunt, and advocates from the Citrus Heights Community for Peace were present during the interviews.
The advocates from the Citrus Heights Community for Peace provide support for the victims of domestic violence and sexual assault and their families.
Y.P. told Turner that around Thanksgiving about five years earlier defendant told her to sit on his lap while he was on the computer at her house on Carriage Drive. While she was on his lap, he put his hand down her pants and inserted his fingers into her vagina. Y.P. also recounted an incident at defendant's apartment where she was sitting next to him playing a video game and he was rubbing her leg.
V.P. told Turner that near Easter approximately five years earlier she had gone on a bike ride with defendant near American River College, and while they were sitting on a bench, he unzipped her pants and inserted his finger into her vagina.
J.P. told Turner that defendant had inappropriately touched her about 15 times. She spoke specifically about one incident about five years earlier where defendant digitally penetrated her at a cousin's birthday party. She told her parents about what defendant had done in July 2012.
During his interviews with Y.P., V.P., and J.P., Turner learned about J.S., L.S., and V.S. He contacted their parents and asked to interview them. On February 6, 2013, Turner interviewed them at the Citrus Heights Police Department. The children's parents, aunt, and the advocates from Citrus Heights Community for Peace were present during the interviews.
J.S. told Turner that defendant had touched her sexually. She told him about an incident five years earlier when she was playing hide-and-seek with defendant. While she was hiding in her closet, defendant came in and attempted to pull her pants down. J.S. resisted and asked defendant what he was doing, and defendant responded, "I like it there." She also told Turner about another game of hide-and-seek in the garden when defendant tried to pull her pants down and get inside her pants.
L.S. told Turner that defendant had inappropriately touched her. A few years earlier defendant inserted his fingers in her vagina while she was watching a movie in the bedroom at his apartment. Defendant sat next her, told her to take her pants off, and to keep watching the movie. When she began to cry, defendant told her, "I'm sorry. It's okay. It will be fine." On another occasion, L.S. was swimming at defendant's apartment complex. When she went inside to change, defendant followed her and demanded she take off her pants. When she refused, he grabbed her arms and pushed her against the bed. She ran off without taking her pants off. She also said that defendant touched her vagina with his foot while they were swimming and recounted an incident where defendant pulled down her pants and touched her vagina while they were playing hide-and-seek in the garden at her house on Pratt Avenue.
V.S. told Turner that defendant touched his "private area" two or three years earlier. Turner later arranged for V.S. to be interviewed at Sacramento County Sexual Assault Forensic Evaluation Center where they specialize in interviewing children under 13 years old. During that interview V.S. was shown a diagram of a boy and indicated defendant touched his penis.
Turner also spoke with S.P. at the police department. He was not asked about and did not testify concerning the substance of that interview.
The mother of Y.P., V.P., and J.P. informed Turner that she first "learned of her girls being touched by" defendant in July 2012. Thereafter, defendant came to her and apologized to her family for touching the girls. The father of J.S., L.S., and V.S. likewise told Turner that defendant had apologized to him for touching the children, and apologized a second time to the entire family for touching his children.
On February 21, 2013, Turner interviewed defendant at defendant's apartment. The interview, which was recorded, was played for the jury. During the interview, defendant acknowledged apologizing to the children and their parents for inappropriately touching the children's private parts, specifically their vaginas. He started touching L.S. and J.P. about five years earlier, before he and Tamara were married in December 2007. He touched the others after he was married. He did not recall his fingers penetrating their vaginas but said it was possible. He touched L.S. more than once. He recalled an incident where she had been swimming at his apartment, went inside to change, and he yelled at her to take off her pants. She ran out and nothing happened. He recalled touching V.P. at her house and trying to touch her vagina on a bike ride when they took a rest break, but she ran off. He tried to touch Y.P., but she ran off, "so nothing really happened. Only once I think, that's it." He touched J.P. probably the most, about ten times. He recalled touching different girls, probably Y.P. and J.P., in the garden on Pratt Avenue. He asked J.S. to take her pants off but she refused and ran off. He never touched her. Defendant asked V.S. to pull his pants down while V.S. was at defendant's apartment. V.S. did as he was instructed, but defendant never touched him.
In August 2014, the defense's investigator, Scott Drageset, interviewed the complaining witnesses. Drageset worked for the Sacramento Police Department for 18 years as a patrol officer, detective, sergeant, and supervisor. After his retirement from the department, he worked as a special investigator for two insurance companies before going to work at defendant's counsel's office. Although Drageset interviewed each of the complaining witnesses, he only testified specifically about two of the interviews.
Y.P. told Drageset that defendant put his hand down her pants and touched her vagina when she was sitting on defendant's lap playing a computer game in her parents' bedroom. She also told him that defendant touched her many times while they played video games at his apartment.
L.S. told Drageset that defendant began inappropriately touching her when she was eight or nine years old. Defendant tried to touch her every time she saw him and succeeded many times. Many of the touchings were skin to skin. On one occasion, she was at his apartment watching a movie in the bedroom when he came in, turned off the movie, and said, "I'll let you watch the movie if you'll let me touch you." He then laid down beside her, removed her pants and panties, and put his fingers inside her vagina. She later told her sister J.S. and her cousins J.P. and V.P. about the incident. A year earlier, defendant came into the bedroom at his apartment while L.S. was changing, pushed her down on the bed, and yelled at her to take off her pants. She told him, "No," and ran out to the pool. Finally, on the day of his wedding to L.S.'s sister, defendant tried to pull her pants down while he was standing behind her.
On cross-examination, Drageset testified that none of the children provided him with "specific dates" or times when the incidents occurred or told him "exactly how old they were when anything occurred." He explained that it is important to keep witnesses separated during the interview process "so they don't contaminate each other's testimony or statements," and "to make sure they are not influenced by anybody." He also confirmed that the children in this case had spoken to each other about the alleged incidents before the police became involved.
Each of the complaining witnesses testified at trial. Y.P., a senior in high school at the time of trial, testified that she was born in 1997 and had lived on Carriage Drive in Citrus Heights since 2001. In approximately 2008, defendant was at her house on Carriage Drive playing a game called Faith on the computer in her parent's bedroom. Defendant was sitting on a chair and Y.P. was sitting on his lap. Defendant put his hand down her pants, under her underwear, and touched her "private area." Y.P. got up and ran away. She could not recall whether defendant put his finger in her vagina and refused the prosecutor's attempts to refresh her memory. Another time, when she was at defendant's apartment playing a video game, defendant touched her thigh with his hand. She could not recall how long the touching lasted and again refused the prosecutor's attempt to refresh her recollection. Y.P. explained that she had forgiven defendant and moved on.
V.P., a junior in high school at the time of trial, testified that she was born in 1998 and lived on Carriage Drive. She had known defendant since before she was 10. Defendant touched her vagina on more than one occasion approximately two to five years prior to January 2013 (Jan. 2008 to Jan. 2011). On one occasion, she and defendant rode their bikes to the elementary school by her house. At the school playground, defendant put his hand in her pants and touched her vagina. V.P. ran off and rode her bike home. On another occasion, she and defendant rode their bikes to American River College. While they were on the bleachers, defendant put his hand in her pants and in her vagina. She told him to stop, got up, and rode her bike home. She believed the incident happened two to five years prior to January 2013. Defendant also touched her while she was at her cousins' house. They were playing hide-and-seek outside in the garden at night, and defendant told her to crouch down on his lap, and when she did so, he put his hand down her pants and his finger inside her vagina. Defendant also touched her vagina while they were swimming at his apartment complex. V.P. talked to her sisters about things defendant had done to her and about things he had done to them. They also discussed ways to stay away from defendant. She recalled Y.P. telling her that defendant had "finger[ed]" her.
J.P., a freshman in high school at the time of trial, testified that she was born in 2000 and lives on Carriage Drive. In approximately 2007, she was at a birthday party at her cousins' house when defendant called her into a bedroom and told her to take off her pants. She did not understand what was going on and did as she was told. Defendant placed his bare hand on her bare "[c]rotch" and put his finger inside her. Defendant did the "same kind of thing" to her other times at his apartment, her house, and her cousin's house, including putting his finger inside her. It happened more than five times and probably more than 10.
J.S., a senior in high school at the time of trial, testified that she was born in 1997 and lived on Pratt Avenue. When she was 9 or 10 years old, defendant tried to pull off her pants while she was hiding in the closet playing hide-and-seek at her house. She pushed his hand away and ran off. She could not recall any additional details and refused the prosecutor's attempts to refresh her recollection. She remembered playing hide-and-seek in her garden on another occasion with L.S. and defendant when defendant tried to touch her. She grabbed L.S. and ran off. Defendant was crouching next to her when it happened. She remembered him touching her back but could not recall if he attempted to take her pants off.
L.S., a sophomore in high school at the time of trial, testified that she was born in 1999 and lives on Pratt Avenue. Defendant touched her vagina with his hands on more than one occasion. At least one of those occasions occurred at defendant's apartment. She was unable to recall any other details at trial and repeatedly refused the prosecutor's attempt to refresh her recollection, explaining that she had forgiven defendant and had moved on with her life. She recalled that defendant apologized for touching her vagina. She also recalled telling her older sister O.S. about what happened with defendant.
V.S., an eighth grader in middle school at the time of trial, testified that he was born in 2001 and lives on Pratt Avenue. Defendant touched V.S.'s penis while he was at defendant's apartment. V.S. was reading a book on the floor in defendant's guest room when defendant came in, sat down next to him, put his hand inside V.S.'s basketball shorts and underneath his underwear, and touched V.S.'s penis.
S.P., a freshman in high school at the time of trial, testified that she was born in 2000. She recalled talking to a police officer at a police station and telling him that two to three years earlier defendant pulled her pants down and touched her vagina while they were playing hide-and-seek at night in the garden of her cousins' house on Pratt Avenue. She later spoke to J.S. and L.S. about what happened in the garden with defendant.
Defendant did not testify at trial. He called his investigator, Drageset, who testified that he had interviewed hundreds, if not thousands, of adults and hundreds of children during his career. He also had investigated over 100 sex abuse cases, included cases involving children. In some of those cases, children lied, and he often did not know why they lied.
DISCUSSION
I
The Trial Court Was Not Required to Appoint a Domestic Violence Counselor
Defendant first contends that the trial court erred in failing to appoint a domestic violence counselor after learning that some of the complaining witnesses had indicated they would not testify at trial. There was no error.
Subdivision (b) of section 1219 of the Code of Civil Procedure, upon which defendant relies, provides in pertinent part: "Notwithstanding any other law, a court shall not imprison or otherwise confine or place in custody the victim of a sexual assault or domestic violence crime for contempt if the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime. Before finding a victim of a domestic violence crime in contempt as described in this section, the court may refer the victim for consultation with a domestic violence counselor." (Emphasis added.)
There is nothing in this statute that compels a trial court to appoint a domestic violence counselor in any case, including this one. To the contrary, the statute states that the court may refer a victim for consultation with a domestic violence counsel before finding the victim in contempt. Accordingly, the trial court's failure to appoint a domestic violence counselor in this case was not error.
Subdivision (b) of section 1219.5 of the Code of Civil Procedure provides that a victim of a sex crime who is under 16 years of age and is subject to contempt for refusing to testify "shall meet with a victim advocate." The trial court repeatedly referenced this code section and concluded that "there's been compliance with [Code of Civil Procedure section] 1219.5." Defendant does not contend otherwise on appeal.
Moreover, defendant fails to identify how he was prejudiced by the trial court's alleged error, and we are unable to perceive any prejudice to him as the result of the trial court's failure to appoint a domestic violence counselor in this case.
II
The Trial Court Did Not Abuse Its Discretion in Discharging Juror No. 4
Defendant next contends that the trial court abused its discretion in discharging Juror No. 4 after Juror No. 4 advised the court that his wife had been involved in a car accident and taken to the hospital. Defendant claims that the trial court should not have discharged the juror before obtaining additional information concerning his wife's condition given that there was less than an hour remaining before their Thursday recess when the juror was discharged, and the trial was scheduled to be in recess the following day. Under such circumstances, defendant asserts that the trial court should have waited until Monday to make its decision. The trial court acted well within its discretion in excusing Juror No. 4.
The trial court explained its decision to discharge Juror No. 4 over defense counsel's objection as follows: "[C]onsidering the fact that we are going to be dark tomorrow and we are going to be dark this afternoon, I don't want to lose another hour of time and particularly in the event that we lose that time and then we end up excusing him anyway . . . ."
Section 1089 provides in pertinent part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors." (Italics added.) " 'We review such a decision for abuse of discretion.' [Citation.] 'The court's discretion is not unbounded: it must determine whether good cause exists to discharge the juror, and its reasons for discharge must appear in the record as a demonstrable reality.' [Citation.] The trial judge is not required, however, to 'elicit conclusive proof of the length of future incapacitation; judges are lawyers, not doctors.' [Citation.] Nor must the incapacitation exceed a specific length of time. '[I]n the right circumstances, an absence of a day or less may warrant excusal. [Citations.] Whether a juror's illness can best be accommodated by a continuance or replacement with an alternate is a matter committed to the trial court's discretion.' [Citation.]" (People v. Landry (2016) 2 Cal.5th 52, 88-89 (Landry).)
Here, there is no dispute that Juror No. 4's wife had been involved in a car accident and taken to the hospital, and that Juror No. 4 requested to be excused by reason of hardship. Although there was a chance that Juror No. 4 would return the following Monday, the trial court was not obligated to take a wait and see approach. (See Landry, supra, 2 Cal.5th at p. 89.) The trial court did not abuse its discretion in concluding that good cause existed to discharge Juror No. 4 when it did so.
III
Defendant's Fundamental Rights Were Not Violated by the Trial Court's Refusal to
Allow His Trial Counsel to Refer to the Salem Witch Trials and "the McMartin Case"
During Closing Argument
Defendant claims that "[p]reventing the defense from arguing the Salem Witch hunt and McMartin cases violated [his] fundamental rights to summation, to counsel's assistance, to presentation of a defense, and relieved the prosecutor's burden to prove its case beyond a reasonable doubt contrary to the Sixth and Fourteenth Amendments." There was no error or constitutional violation.
During her closing argument, defendant's trial counsel sought to "talk about two cases." The prosecution objected, a sidebar was held, and the objection was sustained. After closing arguments and outside the presence of the jury, defendant's trial counsel sought to place the contents of the earlier sidebar on the record: "I was not allowed to talk about [the Salem Witch Trials and the McMartin case] that I believe are common knowledge. And . . . this case I believe parallels . . . those two incidents." The trial court responded, "Well, I'm not certain at this day and age whether those cases are actually common knowledge, but I will say this: That they were reported extensively in the media, but save and except for perhaps the attorneys involved and the parties involved in those cases and people who actually served on the jury nobody knows what happened in those cases. And to argue that what happened -- what you think happened in those cases is what happened here is improper argument in my view and that's why I sustained the objection."
A criminal defendant has a constitutional right to have counsel present closing argument to the trier of fact. (People v. Marshall (1996) 13 Cal.4th 799, 854 (Marshall).) Closing argument "may be based on matters in evidence or subject to judicial notice. It may also refer to matters of common knowledge or illustrations drawn from experience, history, or literature. [Citation.]" (People v. Farmer (1989) 47 Cal.3d 888, 922, overruled on other grounds as noted in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
Although "[c]ounsel may refer the jury to nonevidentiary matters of common knowledge, or to illustrations drawn from common experience, history, or literature [citation], . . . [s]he may not dwell on the particular facts of unrelated, unsubstantiated cases." (People v. Mendoza (1974) 37 Cal.App.3d 717, 725.) In Mendoza, the defendant was convicted of committing a lewd act on a child under the age of 14. (Id. at p. 721.) On appeal, he contended that the trial court had erred in barring defense counsel from reading two newspaper clippings about unrelated cases in which children were reported to have fabricated accusations against innocent men. (Id. at p. 725.) The Court of Appeal held that the trial court "properly permitted defense counsel to draw on common experience for the general notion that children sometimes fabricate accusations against innocent persons, but . . . properly denied defense counsel license to read newspaper clippings about unrelated specific crimes, hearsay material which could only confuse the jury with irrelevant facts." (Ibid.)
Section 1044 vests the trial court with broad discretion to control the conduct of a criminal trial. In exercising that discretion, a trial court must be impartial and must assure that a defendant is afforded a fair trial. When there is no patent abuse of discretion, a trial court's determinations under section 1044 must be upheld on appeal. (People v. Cline (1998) 60 Cal.App.4th 1327, 1333-1334.) An appellate court reviews rulings on the scope of argument for abuse of discretion. (Marshall, supra, 13 Cal.4th at pp. 854-855.) No abuse occurs where the trial court's ruling controls the scope of closing argument and does not preclude the defendant from making his central point. (Ibid.)
Defendant was given ample opportunity to make his central point -- that the children fabricated their claims against him. During her closing argument, defendant's trial counsel spoke at length about how children sometimes fabricate accusations against innocent people for unknown reasons. She told the jury, "We all know there has been times in history where a child has lied and all of a sudden that one lie by that one child has spread to other kids and created almost like this hysteria where the kids collectively then get together and they further the lie. And we know in history when that has occurred that innocent people have paid the price for it." "Now, when that has occurred, we don't know the reason why that one child lied. We don't know the reason why it spread to the other kids and the other kids continue with the lie and then added more details to the lie. But it happened and innocent people at that time paid the price for it." "We know of times where there . . . has been a child who made up allegations of sexual abuse. The parents then got involved and influenced that child. We know that law enforcement then got involved and was influencing not only one child, but numerous children." "We know that kids can be susceptible to undue influence. Officer Turner stated it. Scott Drageset, who was a detective and sergeant in the police force for 18 years here, they can be susceptible to under influence from parents, from other kids. They can lie. And we won't know the reason why they did, but it happens." "Again, we may never know the reasons why somebody decides to lie, why somebody decides to tell a story and why other people jump on the bandwagon, but we do know it's happened and it happens. . . . [¶] . . . [¶] We know that kids talked amongst each other for months and influencing each other and their mistaken perceptions before finally telling the parents [in] July of 2012. [¶] . . . [¶] As we know, this happened in the past. Kids do lie. Other kids, especially in close-knit families, can further that lie. And sometimes we'll never know the reason why."
We find that the trial court properly exercised its discretion by permitting defendant's trial counsel to draw on common experience and the experiences of Turner and Drageset for the notion that children sometimes fabricate accusations against innocent persons, while precluding her from referring to the Salem Witch Trials and the McMartin case, which could confuse the jury with irrelevant and unsubstantiated facts.
IV
The Trial Court Properly Instructed the Jury on Unanimity
Finally, defendant contends that the trial court erred by improperly instructing the jury on unanimity by instructing them in the language of CALCRIM No. 3501, as opposed to CALCRIM No. 3500. He is mistaken.
Two of the counts in the amended information involved V.P. Count two charged defendant with committing a lewd and lascivious act on V.P., "to wit, digitally penetrated victim's vagina while at Pratt Avenue house." The verdict form for count two stated the charge as "a lewd and lascivious act (digitally penetrated victim's vagina at Pratt Avenue house)."
During a discussion about the jury instruction on unanimity, defendant's trial counsel argued that the jury should be instructed with CALCRIM No. 3500, not CALCRIM No. 3501, because "there is a reasonabl[e] likelihood of juror disagreement as to particular acts." The trial court disagreed and instructed the jury in the language of CALCRIM No. 3501 as follows: "The defendant is charged with violation of Penal Code section 288 [subdivision] (a), lewd and lascivious act on a child under the age of 14 years in Counts 1, 2, 3, 5, 6, 7, 8, 9 and 10 sometime during the period of July 16th, 2006 and December 31st, 2011. [¶] The People have presented evidence of more than one act to prove the defendant committed these offenses. You must not find the defendant guilty unless, one, you all agree the People have proved the defendant committed at least one of these acts and you all agree on which act he committed for each offense, or, two, you all agree the People have proved the defendant committed all the acts alleged to have occurred during this time period and have proved the defendant committed at least the number of offenses charged."
During deliberations, the jury sent out a number of questions. Jury question No. 3 asked: "(1) In Count 2, we would like clarification as if we as a jury need to consider the act within parenthesis '(digitally penetrated the victim's vagina)' or whether any touching at all occurred that would meet [Penal Code section] 288 [subdivision] (a). [¶] (2) Were the words in parenthesis provided solely to distinguish between different incidents, or do we need to consider what was in the parenthesis [as] the deciding factor?"
During email communications regarding jury question No. 3, defendant's trial counsel argued as to subpart (1) that the jury should be instructed that it "may only consider the act the District Attorney has specifically alleged in that charge, to wit, digitally penetrated victim's vagina while at Pratt Ave. house, between the dates alleged. Also, that they must unanimously agree as to that act specifically alleged." As to subpart (2), defense counsel asserted that the "jury is not just referring to Count 2, but all the counts," and thus asked the trial court to instruct the jury that it "may only consider the act . . . specifically alleged in that charge in the parenthesis. Also, that they must unanimously agree to that act specifically alleged." The trial court disagreed, finding: "It would be error for me to instruct the jury that the parenthetical reference to the specific act in Count 2 is the act that must be specifically proved. For example, what if the jury unanimously finds that defendant touched her vagina at the Pratt Avenue house on or about the dates alleged, with the requisite intent, but did not penetrate? That is sufficient to sustain a guilty verdict on that count, in accordance with Jury Instruction 1110."
The jury was instructed in the language of CALCRIM No. 1110 in pertinent part as follows: "The defendant is charged in Counts 1, 2, 3, 5, 6, 7, 8, 9 and 10 with committing a lewd or lascivious act on a child under the age of 14 years in violation of Penal Code Section 288 [subdivision] (a). To prove the defendant is guilty of this crime, the People must prove that, one, the defendant willfully touched any part of a child's body either on the bare skin or through the clothing; two, the defendant committed the act with the intent of arousing, appealing to, or gratifying the lusts, passions or sexual desires of himself or the child; and three, the child was under the age of 14 years at the time of the act."
The trial court responded to jury question No. 3 as follows: "1. Please refer to Jury Instruction 1100, which sets forth what the People must prove to establish a violation of Penal Code Section 288 [subdivision] (a). Count 2 alleges commission of a lewd and lascivious act, 'to wit, digitally penetrated victim's vagina while at Pratt Avenue house, upon and with the body and certain parts and members thereof of [V.P.], . . .' You are also referred to Jury Instruction 3501 regarding the requirement that your verdict as to which act was committed must be unanimous. [¶] 2. Please refer to the response to question 1 above. The parenthetical phrases are to provide clarification of counts. You must decide whether the People have proved each element of a violation of Penal Code Section 288 [subdivision] (a) beyond a reasonable doubt, as set forth in Jury Instruction 1100 and your decision as to which act was committed must be unanimous."
Jury question No. 10 stated, "In Count #2, do we have to unanimously decide that [V.P.] was digitally penetrated in order to rule 'guilty' on this count." The response from the court was, "Please refer to the Response of the Court for Jury Question No. 3: Specifically response Numbers 1 and 2."
Jury question No. 12 stated: "(A) Please provide the definition of 'act' in instruction 3501 [¶] (B) Please provide the definition of 'offense' in instruction 3501 [¶] (C) If possible, can you please provide an example of 'act' as defined in instruction 3501 [¶] (D) In count 2, was there more than one act presented as evidence for the charged offense[?]" The court responded, "Response to Questions A, B & C: Please refer to CALCRIM 200, Paragraph 6 regarding words and phrases not specifically defined in these instructions are to be applied to using their ordinary everyday meanings. [¶] Response to Question D: It is up to you as Judges of the Facts to evaluate the evidence and determine what act was or was not committed. Please refer to CALCRIM 1110 and the previous answer to Request No. 3 and Request No. 10."
Jury question No. 14 stated: "If we say guilty to Count 2 are we saying guilty to the 'act' in paren[theses]? Or just guilty to 'any' touching? [¶] We can't get past deadlock without understanding if we have to agree there is digital penetration." The court responded, "You must unanimously agree that the elements in CALCRIM 1110 have been met. Penetration is not a requirement of CALCRIM 1110. However, if it occurred, which only you can decide, it may be evidence of a touching as defined in CALCRIM 1110. If there are multiple acts, you must all agree on the act and if that act falls within the meaning of a touching within CALCRIM 1110 in order to return a verdict of guilty."
"The right to a unanimous jury in criminal cases is guaranteed by the California Constitution. (Cal. Const., art. I, § 16; [citation].) . . . [¶] It is established that some assurance of unanimity is required where the evidence shows that the defendant has committed two or more similar acts, each of which is a separately chargeable offense, but the information charges fewer offenses than the evidence shows. [Citation.] [A unanimity] instruction 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. . . . [I]t is generally agreed that under such circumstances, a unanimity instruction of some kind is required to ensure the defendant's constitutional right to a unanimous verdict. [Citations.]" (People v. Sutherland (1993) 17 Cal.App.4th 602, 611-612.) "[T]he jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) We review the failure to give the proper unanimity instruction de novo. (People v. Hernandez (2013) 217 Cal.App.4th 559, 568.)
" 'In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction [(e.g., CALCRIM No. 3500)] should be given. [Citation.] But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction [(e.g., CALCRIM 3501)] which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim.' " (People v. Fernandez (2013) 216 Cal.App.4th 540, 555-556 (Fernandez), quoting People v. Jones (1990) 51 Cal.3d 294, 321-322 (Jones).)
"CALCRIM No. 3501 is an alternative instruction to CALCRIM No. 3500. CALCRIM No. 3501 affords two different approaches for the jury to reach the required unanimity. The first is the same as that set forth in CALCRIM No. 3500: agreement as to the acts constituting each offense. But unanimity may also be found under CALCRIM No. 3501 if the jury agrees 'that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved that the defendant committed at least the number of offenses charged].' " (Fernandez, supra, 216 Cal.App.4th at p. 556.)
"The unanimity rule has been refined in cases involving sexual molestation of children and repeated identical offenses. 'In such cases, although the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described. [¶] . . . [E]ven generic testimony describes a repeated series of specific, though indistinguishable, acts of molestation. [Citation.] The unanimity instruction assists in focusing the jury's attention on each such act related by the victim and charged by the People. We see no constitutional impediment to allowing a jury, so instructed, to find a defendant guilty of more than one indistinguishable act, providing . . . three minimum prerequisites . . . are satisfied.' ([Jones, supra, 51 Cal.3d at p. 321.) Those prerequisites include generic evidence describing (1) the kind of acts committed, (2) the number of acts committed with sufficient certainty to support the alleged counts, and (3) the general time period in which the acts occurred. (Id. at p. 316; People v. Matute (2002) 103 Cal.App.4th 1437, 1448.)" (Fernandez, supra, 216 Cal.App.4th at pp. 556-557, italics omitted.)
In Fernandez, the defendant appealed his convictions of numerous molestation offenses involving two of his granddaughters, contending the trial court erred when it instructed the jury with a modified unanimity instruction under CALCRIM No. 3501, rather than with the standard unanimity instruction (CALCRIM No. 3500). (Fernandez, supra, 216 Cal.App.4th at pp. 545, 555.) The Court of Appeal held that the trial court had properly instructed the jury with CALCRIM No. 3501. (Fernandez, at pp. 558, 569.) Applying the three Jones prerequisites, and noting that one of the two victims "testified about both specific and generic instances of molestation" (Fernandez, at p. 557), the court reasoned that "[b]oth girls testified about numerous, repetitive molestations which took place over a defined period of time. Each described the distinct types of abuse to which she had been subjected in sufficient detail, was able to identify the locations where it took place, and was able to give a general estimate of the frequency of events." (Ibid.) The court also stated that the defendant "offered no evidence in his defense that might focus doubt as to any specific act of abuse as distinguished from any other act of molestation. Rather, his defense was simply that no molestation ever occurred. Thus, it is unlikely that the jury would have a reasonable disagreement with respect to any particular act or instance of abuse or could reasonably conclude that some of the victims' testimony was true but other parts were not." (Id. at pp. 557-558.) The court further reasoned that "[t]he jurors either believed all the acts occurred, or they disbelieved the girls' stories completely. As Jones explains, if it is not reasonably likely that jurors will disagree as to which particular act the defendant committed and the only issue is whether they were committed at all, the jury should be given the modified unanimity instruction contained in CALCRIM No. 3501. This is so because the instruction allows the jurors to convict if they agree unanimously on certain acts or if they unanimously agree the defendant committed all the acts alleged by the victim." (Id. at p. 558, citing Jones, supra, 51 Cal.3d at pp. 321-322.)
Here, like Fernandez, the victims testified about both specific and generic instances of molestation, and the Jones prerequisites were satisfied in that the victims "described the distinct types of abuse to which [they] had been subjected in sufficient detail, w[ere] able to identify the locations where it took place, and w[ere] able to give a general estimate of the frequency of events." (Fernandez, supra, 216 Cal.App.4th at p. 557.) For example, J.P. testified to one specific incident in approximately 2007 where defendant inserted his finger in her vagina while she was at a birthday party at her cousin's house, as well as generic instances where defendant later did the "same kind of thing" to her at his apartment, her house, and her cousin's house on more than five occasions. Moreover, as in Fernandez, defendant "offered no evidence in his defense that might focus doubt as to any specific act of abuse as distinguished from any other act of molestation. Rather, his defense was simply that no molestation ever occurred. Thus, it is unlikely that the jury would have a reasonable disagreement with respect to any particular act or instance of abuse or could reasonably conclude that some of the victims' testimony was true but other parts were not." (Id. at pp. 557-558.) Accordingly, the court properly instructed the jury under CALCRIM No. 3501.
Defendant claims that the jurors' questions indicated that they might disagree as to the particular act defendant committed so that the standard CALCRIM No. 3500 should have been given. This claim is nonsensical as the jury was instructed before the jury submitted its questions. Moreover, in responding to the jury's questions concerning count two, the trial court repeatedly instructed the jury that if there are multiple acts, they must all agree on the act committed for that offense. The jury was properly instructed on unanimity.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Robie, J. /s/_________
Mauro, J.