Brief Bank # B-872 (Re: F 17.01 n27 [Juror Unanimity: Sexual Molestation])
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Date Of Brief: October, 2000.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, (SANTA CLARA CO.
vs. NO. F9985530)
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
ON APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT
COUNTY OF SANTA CLARA, STATE OF CALIFORNIA,
THE HONORABLE EDWARD F. LEE, JUDGE PRESIDING
SIXTH DISTRICT APPELLATE PROGRAM
State Bar #100175
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
Attorneys for Appellant,
VI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO GIVE CALJIC NO. 17.01 SUA SPONTE.
The prosecutor charged appellant with one act of lewd and lascivious conduct with a minor. However, the evidence revealed more than one possible act. Ms. H testified that appellant touched her genital area. (RT 104-106.) Although he denied that he had touched Ms. H’s genitals, appellant admitted that he had given Ms. H a bear hug. (RT 227.) During his closing argument the prosecutor contended that either of these acts could constitute an act of molestation.
“So let me go through sort of each one of those elements and talk about them. That’s what you’re asked to do when you make this decision, is when you look at that charge that says count 1, ‘touching by use of force or duress,’ and then it says at the very end of the instruction, ‘define [sic] it as true,’ you must find 4 things to be true:
“The first one here is a person touched the body of a child. I’d like to explain a couple things about it that may not be apparent. The law says that a lewd or lascivious act – this lewd act we’re talking about is defined as any touching of the body of a child and then it goes on to say, to constitute a lewd or lascivious act, it is not necessary that the bare skin be touched. The touching may be through the clothing of the child.
“Now, why did I bring that up? You heard Ms. H talk about where she was touched and how she was touched. She told you that it was under her clothing. And she told Officer Madruga the same thing, that it was skin-to-skin; in other words, that her privates or vaginal area was being touched by the hand of the defendant on her private area underneath her clothes.
“But what I’m telling you here is when you look at the instruction is that there’s – there’s no requirement that that be the case. The law just says that her body be touched.
“In other words, it doesn’t have to be a private part that was touched. That’s important. It can be any part of her body that was touched. And it doesn’t have to be underneath the clothing. It can be just over the clothing as long as there’s required intent, that I’m going to talk about in a second.
“So what does that mean? For element one, all that’s required is that the defendant touched the body of the child in some way, some fashion, either over the clothes, under the clothes on her privates, some other part. Just for that element I’m talking about for a minute.
“Now, why is that important? I say that because everyone agrees that he did touch her at some point that day. When I say everyone, I’m including the defendant. Because as you heard, when Officer Madruga testified, he took a statement from the defendant where he was Mirandized. And in that statement, he not only admitted that he was alone with Ms. H for awhile, he admitted that he was playing with Ms. H for awhile. And in that statement, he also admitted that he had been touching her, that he put her in a bear hug and he’d been playing with her and he touched her. (RT 343-345, emphasis added.)
Given this record, the trial court had a duty to instruct the jury sua sponte with CALJIC No. 17.01. By failing to do so, the court committed reversible error.
When the information charges the defendant with a single criminal act, and the evidence shows more than one such unlawful act, the court must instruct the jury that it must unanimously agree that the defendant committed the same act. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) Thus, in an appropriate case, the trial court is obligated to give CALJIC No. 17.01 sua sponte. (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
In this case, there is no question that the prosecutor relied on two separate acts as constituting the charged offense. As was quoted above, the prosecutor advised the jury that the crime was committed by either: (1) the touching of Ms. H’s genitals; or (2) the bear hug. (RT 344-345.) Given this argument, No. 17.01 was a necessary instruction.
People v. Alva (1979) 90 Cal.App.3d 418 establishes this conclusion. There, a twelve year old girl testified that the defendant committed a number of acts of sexual molestation against her. However, No. 17.01 was not given. On this record, the defendant’s Penal Code section 288 conviction was reversed since the jury was given no instruction regarding its duty to unanimously agree as to which act constituted the offense. (Id., at pp. 423-426.)
Obviously, the identical result is proper here. Although the prosecutor argued that there were two separate acts which could constitute the crime, the jury was never told that it had to unanimously agree on the same act. As was the case in Alva, error clearly appears.
In positing this conclusion, appellant is well aware of the rule suggested in some cases that No. 17.01 need not be given when the evidence reveals no basis for the jurors to disagree as to the nature of the act committed. (People v. Brown (1996) 42 Cal.App.4th 1493, 1500, and cases cited therein.) This situation exists if the defendant has raised only a single defense as to each act. (Ibid.) This rule has no application here since appellant relied on separate defenses as to each act.
As to the alleged touching of Ms. H’s genitals, appellant contended that the act never occurred. While appellant admitted that he gave a bear hug to Ms. H, he denied that the touching was sexual in nature. Given these separate and distinct defenses, No. 17.01 was a necessary instruction. (People v. Diedrich (1982) 31 Cal.3d 263, 282-283; where the evidence showed two possible acts of bribery, reversal was required since “Diedrich’s defenses differed: As far as the Jolly Fox offer is concerned, it consisted of a simple denial. The Remington transactions were ‘explained;’” see also People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071; reversible error found since different defenses were raised as to two acts of alleged drug possession.)
Turning to the issue of prejudice, the failure to give No. 17.01 has been deemed federal constitutional error since the omission of the instruction reduces the government’s burden of proof. (People v. Deletto (1983) 147 Cal.App.3d 458, 472.) As has already been discussed, this type of error compels per se reversal. (See pp. 41-42, supra.)
Assuming arguendo that the Chapman standard is applicable, the error is clearly prejudicial. There was an absolute conflict in the evidence as to whether appellant had sufficient time to molest Ms. H. According to Ms. S, appellant was in the garage with Ms. H for only the length of a television commercial. Given this testimony, some jurors might have disbelieved Ms. H’s claim that appellant touched her genitals. However, these same jurors might have convicted appellant based on his admission that he placed Ms. H in a bear hug. Since there is a real possibility in this case that the jurors returned a conviction without unanimously agreeing on the criminal act which was committed, reversal is required.
People v. Laport (1987) 189 Cal.App.3d 281 demonstrates the validity of this conclusion. There, the defendant was charged with one count of grand theft. The evidence showed that defendant had: (1) written $18,000 worth of checks to herself; and (2) taken $5000 worth of paintings. Regarding the checks, defendant claimed that she was authorized to take the money. With respect to the paintings, the defendant disclaimed any intent to keep them. On this record, prejudicial error was found.
“Failure to give CALJIC 17.01 here creates a conundrum. Jurors one through six, for example, may have found Laport guilty of theft for writing checks to herself, but jurors seven through twelve may have found her not guilty of this offense. On the other hand, jurors one through six may have found Laport not guilty of the offense of stealing the paintings, but jurors seven through twelve may have found her guilty of that offense. Twelve jurors would have found her guilty of the general crime of theft but they would not have agreed upon which act constituted that theft. Therefore, the judgment must be reversed.” (Id., at pp. 283-284.)
The identical result is appropriate here. Six jurors might have believed Ms. H’s testimony and the other six jurors might have concluded that the bear hug was performed with a sexual intent. Absent No. 17.01, the twelve jurors could have thereby reached a non-unanimous verdict. Reversal is required. (Laport, supra, 189 Cal.App.3d 281, 283-284.)
As a final point, appellant notes that there is some authority for the proposition that the failure to give No. 17.01 constitutes only Watson error. (People v. McIntyre (1981) 115 Cal.App.3d 899, 911.) However, this authority is unpersuasive since it fails to account for the reality that the omission to give No. 17.01 impacts on the proof beyond a reasonable doubt standard. (Deletto, supra, 147 Cal.App.3d 458, 470-473; declining to follow McIntyre.)
In any event, reversal is warranted in this case even if the Watson standard is applied. As appellant has amply established, there is simply no way to know on the instant record whether the jurors unanimously agreed on a single act. Given this reality, the judgment must be reversed.