Brief Bank # B-578 (Re: F 10.42.6 n2 [Continuous Sexual Abuse Of A Child — Juror Unanimity Required As To Single Victim (PC 288.5(a))].)
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Date of Brief: January 1992
IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, 3 Crim. C000000
Defendant and Appellant.
APPEAL FROM THE SUPERIOR COURT OF SISKIYOU COUNTY
HON. ROBERT F. KASTER, JUDGE
APPELLANT’S OPENING BRIEF
Robert D. Platt
36 Wimbledon Lane
Fairfax CA 94930
Attorney for Appellant
(Appointed by the Court;
THE COURT ERRED IN PERMITTING THE JURY TO FIND APPELLANT GUILTY WITHOUT UNANIMOUSLY DECIDING WHO DID WHAT TO WHOM.
What went wrong with the trial of this case is best exemplified by the verdict: Doe was convicted of “continuous sexual abuse on a child or children . . . victims [R.L., D.S.] or [R.S.]” (CT 289, emphasis added.) Neither “or” was a typographical error; both were repeated in the verdicts of each of the other defendants. (CT 293.) Right on the face of the verdict, it is clear that the jury did not decide just who among the children had been molested.
When the evidence discloses more than one way in which a defendant could have committed a charged offense, “the trial court must instruct, on its own motion even in the absence of a request, that the jurors must unanimously agree upon the particular act committed. (See CALJIC No. 17.01.) Otherwise, some of the jurors might base their verdict on [one act] while the other jurors base theirs on [another], and the fundamental principle that a criminal conviction requires a unanimous jury verdict would be violated.” (People v. Wesley (1986) 177 Cal.App.3d 397, 401.) “As long as there are multiple acts presented to the jury which could constitute the charged offense, a defendant is entitled to an instruction on unanimity.” (People v. Dellinger (1984) 163 Cal.App.3d 284, 301.) “. . .[T]he requirement of unanimity in criminal cases is of constitutional origin. . . . In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given.” (People v. Jones (1990) 51 Cal.3d 294, 321. See generally People v. Melendez (1990) 224 Cal.App.3d 1420, 1427-1434, for an extended discussion of the principles governing application of the unanimity rule.)
One of the more obvious situations in which a unanimity instruction is required is when the defendant is charged with having victimized more than one person. “Assaults upon separate victims, even though perpetrated by a single individual during an indivisible course of conduct, each comprise a separate, punishable offense.” (People v. McNeill (1980) 112 Cal.App.3d 330, 334.) If in such a case a unanimity instruction is not given, “The possibility that the jurors may have come to different conclusions as to the identity of the assault victim vitiates the constitutionally required assurance of juror unanimity as to the assault conviction.” (Id., pp. 334-335.)
In People v. Gibson (1991) 229 Cal.App.3d 284, the defendant was charged with driving under the influence and also with causing injury to more than one victim within the meaning of Vehicle Code section 23182, providing for a sentence enhancement of one year for each additional injured victim. Three such victims were alleged, and the jury found the special allegation true but did not specify which of the victims it found to have been injured. The Court of Appeal held McNeill controlling: “. . . [B]ecause we cannot say whether the jury unanimously agreed who was injured, the special finding is deficient.” (People v. Gibson, supra, 229 Cal.App.3d at p. 288.)
In this case, several factors combined to virtually guarantee a confused and divided jury.
Matters began to go awry with the filing of the information, charging Doe with “three or more acts of lewd and lascivious conduct with a minor child, to wit; R.L., D.S., and R.S. . . .” (CT 6.) Because it charged acts directed against separate victims, this pleading was “defective in alleging multiple offenses in one count. (Pen. Code § 954.) . . . [The defect was waived by defendant’s failure to demur but u]nfortunately, the ramifications of this all too common error extend beyond mere formal insufficiency of the pleading . . . . This particular pleading blunder invariably creates complicated instructional problems which if not resolved at trial frequently compel reversal.” (McNeill, supra, 112 Cal.App.3d at pp. 334-335.)
The problems were not resolved at trial; they were aggravated. Over Doe’s objection, his trial was consolidated with those of Mrs. Doe and Mrs. L. (CT 118, 124, 129.) Doe’s motion to strike parts of K.L.’s testimony on the ground that he was not charged with an offense involving her was denied. (RT 566.) Each of these rulings, standing alone, was probably defensible. But their readily predictable consequence was the Tower of Babel summarized in the statement of facts above.
It is not an exaggeration to say that for the jurors to have made sense of this evidence, and to have decided unanimously and beyond a reasonable doubt just what each of the defendants had done and to whom he or she had done it, would have been a difficult task even if they had been instructed with Solomonic wisdom. Not only were they not so instructed; they were affirmatively told they did not need to agree upon very much at all. They were instructed as follows:
All Defendants are accused in the information of the crime of continuous sexual abuse of a child, a violation of Section 288.5(a) of the Penal Code.
Every person who either resides in the same home with a minor child or has recurring access to a child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with the child under the age of 14 years at the time of the commission of the offense, or three or more acts of lewd or lascivious conduct with a child under the age of 14 years at the time of the commission of the offense, is guilty of the crime of continuous sexual abuse of a child, a violation of Section 288.5(a) of the Penal Code.
. . . .
In order to prove such crime, each of the following elements must be proved:
1. A person is a resident in the same house with a minor child or had recurring access to a minor child, and
2. Such person over a period of time, not less than three months in duration, engaged in three or more acts of substantial sexual conduct or lewd and lascivious conduct with the child under the age of fourteen years at the time of the commission of the sexual or lewd conduct.
The People have introduced evidence tending to prove that there are more than three acts of substantial sexual conduct or lewd and lascivious conduct upon which a conviction may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt and you unanimously agree that the defendant committed three such acts. It is not necessary that you unanimously concur on which acts constitute the required number.
(CT 258-259, RT 1769-1771, emphasis added. The instruction was adapted substantially unchanged from CALJIC 10.42.6 (5th ed. 1991 pocket part).) [Footnote 1]
This instruction is based upon the language of Section 288.5, subsection (b) of which provides, “To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.” But this enactment was not intended to repeal the constitution. It is still necessary that the jury unanimously decide that a defendant engaged in a particular course of conduct, against a particular victim. No legislation can justify, nor should it be interpreted as an attempt to justify, a verdict that the defendant abused “A or B or C.;” that is no better than a verdict that a defendant is guilty of “this or that or the other”.
Section 288.5 was designed to deal with the problem presented by the resident child molester:
“(a) Because of the court’s decision in People v. Van Hoek  200 [Cal.App.3d] 811, there is an immediate need for additional statutory protection for the most vulnerable among our children, those of tender years, some of whom are being subjected to continuing sexual abuse by those commonly referred to as ‘resident child molesters.’ These molesters reside with, or have recurring access to, a child and repeatedly molest the child over a prolonged period of time but the child, because of age or the frequency of molestations, or both, often is unable to distinguish one incident from another in terms of time, place, or other particulars, and as a consequence prosecutors are unable to provide the specificity of charges necessary to overcome the constitutional due process problems raised in the Van Hoek case within the framework of existing law. . . .
“(b) It is the intent of the Legislature in enacting this act to provide additional protection for children subjected to continuing sexual abuse of a child and certain punishment for persons referred to as ‘resident child molesters’ by establishing a new crime of continuing sexual abuse of a child, under circumstances where there have been repeated acts of molestation over a period of time, and the perpetrator either resides with or has recurring access to the child. . . .”
(Findings and Declarations of the Legislature, as quoted in the Comment to CALJIC 10.42.6, supra.)
In Van Hoek the defendant was accused of molesting his daughter over a period of ten years. The victim described a large number of similar acts, but could not link any of them to any particular date or significant event such as a birthday. The defendant was prosecuted under section 288, subdivision (a), requiring proof of a “lewd or lascivious act” upon a child (as charged in the alternative counts herein). The Van Hoek court held that the evidence provided “nothing to enable the jury to tie the specific evidence to a specific charge.” (Van Hoek, supra, 200 Cal.App.3d at p. 814.)
The legislative response to Van Hoek was to create a crime consisting of a continuous course of conduct. If in this case the evidence had consisted of the testimony of a single victim describing a series of similar acts within a given time frame, but the victim was unable to specify any dates, the instruction given in this case would have been appropriate. It was not appropriate where an extended parade of witnesses, contradicting themselves and each other, described a number of dissimilar incidents involving several alleged victims and perpetrators.
Van Hoek also provoked a judicial response. In People v. Jones, supra, 51 Cal.3d 294, the Court dealt with another prosecution under section 288, subdivision (a). The Court disapproved Van Hoek (p. 322) and held that a series of acts, though indistinguishable one from another, could satisfy the requirements of that statute and the constitutional unanimous jury requirement, provided the testimony was sufficiently specific as to the kind and number of acts committed and the general time period, and provided that “In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given.” (Jones, supra, 51 Cal.3d at p. 321.) [Footnote 2]
This is such a case if ever there was one. Looking only at the case presented by the prosecution, there was testimony that Doe molested all three of the children named in the verdict. (Mr. L at RT 133-136, R.L. at RT 696-698, R.S. at RT 954-956.) There was testimony that he did not molest any of them. (R.L. at RT 497, 499, D.S. at RT 771, 776.) There was testimony that perhaps he molested one or another but not all of them: D.S. never confirmed that Doe had molested her. (RT 767-786.) R.L. testified on one day that Doe had not molested him, and on the next that he had. (Compare RT 497 and 499 with RT 696-698.) R.S. testified to molestation, but contradicted Mr. L’s accounts concerning the circle in the garage and the Fourth of July. (RT 954-956, 993, 981, 1024-1025.)
Adding to the confusion, the court gave standard aiding and abetting instructions. (RT 1759-1760, CT 239-240.) Thus some jurors could have voted for conviction on the theory that Doe did nothing himself but was responsible for all or some of the acts committed by others, including the principle accuser Mr. L: D.S., for example, testified that Doe and Mrs. Doe watched while she was molested by Mr. L and the other men, but did not touch her, or, so far as she saw, any of the children. (RT 771-772, 776.)
The instructions as given arguably allowed a vote for conviction even if a juror believed the defendant to have committed a single act of molestation against each of the three named alternative victims.
The greatest danger in such a case is that the jury may have simply concluded that with all this smoke there must have been some fire, and, without trying to decide who did what to whom, convicted the defendants on the theory that each must at least have aided and abetted the statutorily required three acts upon some one or more of the children named.
Because the error deprived appellant of his constitutional right to a unanimous jury verdict, it must be considered prejudicial unless it was harmless beyond a reasonable doubt. (People v. Gordon (1985) 165 Cal.App.3d 839, 855.) The test for harmless error in such a case is whether “the jury’s verdict implies that it did not believe the only defense offered.” (Ibid.) Here the jury’s verdict permitted no such implication; on the contrary, the verdict itself states unambiguously that the jurors did not even necessarily agree upon who had been molested. The case presented by the prosecution was a farraginous jumble from which twelve jurors could easily have picked twelve different justifications for a vote of guilty. The instructions told them it was proper for them to vote in that manner. Following upon such evidence and instructions, the verdict may fairly be translated thus: “We do not know what the defendant did or to whom he did it, but we are satisfied he did something bad.” Such a verdict is a travesty, and cannot be permitted to stand.
For the reasons stated above, the judgment should be reversed and the case remanded to the trial court.
Dated: January 13, 1992
Robert D. Platt
Attorney for Appellant
Footnote 1: In contrast, the court did instruct the jury that it would have to “unanimously agree upon the commission of the same specific act constituting the crime” before finding any defendant guilty on the alternative counts under section 288, subdivision (a) (lewd act upon a child). (RT 1764-1765, 1777; CT 248-249, 271.)
Footnote 2: The Court pointed out, at 51 Cal.3d 310-311, that its discussion of the constitutional issues would apply as well to a prosecution under section 288.5.)