Opinion Bank # O-135
NOTE: The text of the footnotes appear at the end of the document.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
THE PEOPLE, C011667
Plaintiff and Respondent, (Super. Ct. No. 45310)
LEONARD SLEMP, SR.,
Defendant and Appellant.
This case shows the consequence of failing to instruct the jury that it must unanimously agree which of several children named in the alternative was a victim of continuous sexual abuse (Pen. Code, § 288.5) [FOOTNOTE 1]. We are compelled to reverse the conviction given a conflict in the evidence which precludes our finding beyond a reasonable doubt that defendant met the criteria of section 288.5 regarding a single child or all of the children.
An information charged defendant, Leonard Slemp, Sr., with one count of continuing sexual abuse of a child (§ 288.5) in that he engaged in three or more acts of lewd conduct with “a minor child” under the age of 14 — to wit: Robert Lee, Dorothy “and” Robert Silas — over a period of time not less than three months, June 1989 to July 1990. [FOOTNOTE 2] (Emphasis added.) The information further alleged that at the time of the commission of the offense defendant occupied a position of special trust (father and uncle” (emphasis added)) and committed an act of substantial sexual conduct (oral copulation) within the meaning of section 1203.066, subdivision (a)(9).
A jury found defendant guilty of “continuous sexual abuse on a child or children, violating Section 288.5 of the Penal Code, between June, 1989 to July, 1990, victims Robert , Dorothy , or Robert ” (emphasis added) and, in connection with the offense, found true (without specifying whether the position of special trust was father or uncle) the section 1203.066, subdivision (a)(9) allegation. [FOOTNOTE 3]
The trial court failed to instruct the jury that it must unanimously agree as to a single individual among the three alleged victims upon whom he was said to have committed continuing sexual abuse. This was prejudicial error. [FOOTNOTE 4] The count on which defendant was found guilty alleged three victims in the conjunctive. However, the jury’s verdict is ambiguous in naming the victims in the disjunctive, and the position of special trust finding does not resolve the ambiguity. That raises the question whether the jury could have diverged in its verdict with respect to a particular child. We have examined the evidence and conclude that because the evidence was in conflict as to each child whether the defendant committed the requisite three offenses that the jury could have diverged. For that reason we cannot find beyond a reasonable doubt that the jury unanimously agreed as to a single child or as to all three children. We will reverse the judgment of conviction. [FOOTNOTE 5]
At the outset we address the People’s reversal of position at oral argument. The People had conceded in briefing that a unanimity instruction was required, arguing that the failure was harmless error. At oral argument, relying on cases beginning with this court’s opinion in People v. Higgins, supra, 9 Cal.App.4th 294, decided seven months ago, the People sought to withdraw the concession and to argue that under section 288.5 no unanimity instruction was required. Ordinarily we would reject such a belated change of heart as destructive of the orderly processes of the court. But we address the argument to avoid an egregious misunderstanding of the elements of a section 288.5 offense.
The People claim that People V. Higgins, supra, 9 Cal.App.4th 294 and People v. Avina (April 9 , 1993, A056572) Cal.App.4th _____, ______, support the proposition that section 288.5 does not require that defendant have committed at least three acts of substantial sexual conduct over at least a three month period with a child under the age of fourteen and for that reason a jury need not unanimously find such to be the case. Rather, it is impliedly claimed that a single charge may be predicated upon three acts against multiple children over three months. On this reasoning no unanimity instruction, as claimed in this case, is required. We reject the argument as contrary to the provisions of section 288.5.
The cases relied upon involve a charge of continuous sexual abuse of a single child. They hold no more than that the jury need not unanimously agree which acts involving a single child meet the three acts over three months criteria and for that reason a unanimity instruction is not necessary to establish which acts constitute the three. This obviates a unanimity instruction only regarding the specification of acts. “To convict under [section 288.5] the trier of fact . . . need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.” (Higgins, supra, 9 Cal.App.4th at p. 299.) Unanimity is required with respect to the number and duration of the acts. These cases manifestly do not change the elements of the offense to relieve the jury of unanimously finding that the defendant committed three acts of substantial sexual abuse in three months against a single child. Consequently, the cases do not, nor could they, hold that section 288.5 permits a prosecutor to aggregate acts against multiple children and in this manner fashion an offense consisting of three acts against different children within the requisite period.
Section 288.5 was enacted in 1989 to reach “‘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.” (Stats. 1989, ch. 1402, § l(b), emphasis added.) There is not the faintest suggestion in the grammar of this provision or section 288.5 that the offense applies to conduct other than continuous sexual abuse of a single child. Section 288.5 in referring in the singular to a resident defendant’s relationship with “the minor child” and “recurring access to the child”, necessarily requires three acts in three months with “a [single) child under the age of 14 years . . . . ” This is amplified by the section’s explicit provision for multiple victims. “A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim.” (§ 288.5, subd. (c).) This plainly says that each alleged victim must be made the subject of a single count. The unless clause, being an exception to the single count requirement, necessarily refers to multiple counts. It cannot be construed to permit the aggregation of multiple victims in a single count, much less change the elements of the offense to permit action upon proof of three acts against separate victims. The “may” of the unless clause, upon which the People blindly seize, cannot do that grammatical work. It immediately follows the predicate clause which uses “may” in the mandatory sense [“may be charged with only one count”] and says no more than that the People may, but need not, file a multiple count charge.
When an accused is charged in a single count with sexual abuse of more than one child, he is charged with a separate punishable offense as to each child. (See In re Sheridan (1964) 230 Cal.App.2d 365, 372-374.) In alleging multiple offenses in one count, this case begins with a defective pleading (see § 954), a defect waived, however, by defendant’s failure to demur (see § 1004, subd. 3). (See People v. McNeill (1980) 112 Cal.App.3d 330, 334-335.) “Unfortunately, the ramifications of this all too common error extend beyond mere formal insufficiency of the pleading, a problem susceptible of easy solution in any event. This particular pleading blunder invariably creates complicated instructional problems which if not resolved at trial frequently compel reversal.” (Id. at p. 335.) The problem area is jury unanimity.
An accused’s right to trial by jury (Cal. Const., art. I, § 16) includes a right to a unanimous verdict. (People v. Wheeler (1978) 22 Cal.3d 258, 265.) A conviction may not stand on a non- unanimous verdict. The right to a unanimous verdict means, among other things, that when a single count pleads several separate and distinct offenses, each requiring independent proof, and the evidence tends to show the accused committed more than one, the jury must agree upon at least one particular offense committed in order to convict on that count. (People v. Scofield (1928) 203 Cal. 703, 709-710 (defendant charged with violation of a Vehicle Code section under which a conviction could rest on his failure to do any one of several acts in the event of a collision, as pleaded conjunctively in the information, e.g., to stop immediately, to give his name and address, to render necessary assistance, etc.].) [FOOTNOTE 6] This is a general principle of law on which a trial court must instruct, whether requested to or not, if the circumstances of the case so dictate. (People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8; People v. Scofield, supra, 203 Cal. at p. 710.) When certain jurors might find the defendant committed one criminal act, while others might find he committed another without all jurors finding he committed the same one an instruction to that effect is necessary for the jury’s understanding of the case. (People v. Crawford (1982) 131 Cal.App.3d 591, 596, 599-600 [unanimity instruction required when defendant charged in one count with possession of any one of four handguns, each of which was found in a different location, and each of which showed unique facts surrounding its possession].)
The possibility for jury divergence occurs when the charged acts are factually distinct. “Conversely, where the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury’s understanding of the case.” (People v. Crawford, supra, 131 Cal.App.3d at p. 599; see People v. Espinoza (1983) 140 Cal.App.3d 564, 569 [defendant’s conviction of assault with deadly weapon could have been based on either his use of a knife or his accomplice’s use of a rifle, nonidentical acts the jurors may not necessarily have agreed constituted the assault].) [FOOTNOTE 7]
The Possibility of jury divergence determines whether a unanimity instruction should be given in the first instance and thus to the question whether it was error not to give one. (People v. Beardslee (1991) 53 Cal.3d 68, 93 [instruction unnecessary when defendant prosecuted for murder as either actual Perpetrator or as aider and abetter based on a single course of conduct not involving multiple independent acts; no possibility of disagreement on the underlying facts]; see also People v. Stankewitz (1990) 51 Cal-3d 72, 100 [unanimity instruction unnecessary when the defendant offers the same defense to each of Multiple acts so closely connected as to form part of one criminal transaction, and there is no reasonable basis for the jury to distinguish between them]; People v. Carrera, supra, 49 Cal.3d at pp. 311-312 [simultaneous robbery of two victims in joint custody of money charged in one count; no error in not giving unanimity instruction; “It was not necessary that the jury distinguish between the two victims as there was no evidence here from which the jury could have found defendant was guilty of robbing one of the victims and not the other”]; People v. Crandell (1988) 46 Cal.3d 833, 874-875 [instruction not required in murder prosecution when there was no uncertainty the defendant committed each of two concurrent, potentially lethal acts].)
The People urge the instructional omission was harmless because it is not reasonably probable the jury in fact disagreed. [FOOTNOTE 8] The People argue that the evidence was overwhelming that all the children were molested by defendant as charged, whether as a direct perpetrator or as an aider and abetter, [FOOTNOTE 9] so the jury’s verdict necessarily implies it believed the entirety of the inculpatory testimony and completely rejected the defense, thus the jury must have believed defendant molested all the children as charged, and defendant got his unanimous verdict. The argument is, in short, that the evidence presented the jury with only two choices — either defendant molested all the children or he molested none of them; the guilty verdict thus necessarily implies he molested them all. This overlooks a critical point here that the verdict names the victims in the disjunctive. We do not share the People’s perception of that verdict in light of the evidence as necessarily excluding the possibility that some jurors might have based their verdict on one victim and some on another.
“[T]he question [of prejudice] is not whether substantial evidence would support a verdict based on one or more of the acts. The question is the narrow one of whether the record shows the jury agreed on the act.” (People v. Espinoza,, supra, 140 Cal.App.3d at p. 569 [defendant convicted of assault, and evidence showed two separate and distinct acts — the defendant’s use of a knife or his companion’s use of a rifle upon which it could have been based; conviction reversed; “Because the jurors were not told they had to agree on the same act or acts as the basis for the assault, the record does not exclude the possibility some jurors based their verdict on one act and some on the other”; fn. omitted]; see People v. Wesley (1986) 177 Cal.App.3d 397, 400-401 [information pleaded the charged offenses in the conjunctive, the jury was instructed in the singular, and the verdict was returned in the disjunctive].) [FOOTNOTE 10] The determination of a defendant’s quilt is for the jury, not a reviewing court. (People v. Madden (1981) 116 Cal.App.3d 212, 219.) Because a conviction may not stand on a non-unanimous verdict, the question is not one of divining what a hypothetical, properly instructed jury might have found; it is one of ascertaining to a moral certainty what the verdict shows these jurors, in this case, in fact found. If the verdict is ambiguous and does not necessarily eliminate the possibility of non-unanimity, it is unacceptable. We look to see whether the jury’s verdict, in light of the pleading, the evidence and the law on which it was instructed, necessarily implies the jury believed the defendant guilty as to any one (or all) of the acts shown. That implication follows only when a single defense, typically an unqualified denial, is offered to alleged acts comprising part of a single transaction, typically involving one victim, which develops at trial into a mere credibility contest between the accused and the alleged victim, there being no other witnesses or real evidence supplying contrary information to the jurors on the same events. (See People v. Stankewitz, supra, 5 Cal.3d at p. 100 [holding this type of evidence renders the instruction unnecessary in the first instance); People v. Crandell, supra, 46 Cal.3d at pp. 874-875; People v. Gordon, supra, 165 Cal.App.3d at p. 855; People v. Deletto, supra, 147 Cal.App.3d at pp. 465-473; cf. People v. Diedrich (1982) 31 Cal.3d 263, 282-283; People v. Ferguson (1982) 129 Cal.App.3d 1014, 1021; People v. Hefner (1981) 127 Cal.App.3d 88, 96-97.) That is not this case.
The defense here was an unqualified denial of any wrongdoing. But in the context of multiple charged offenses involving separate victims and provable by evidence of separate and distinct multiple acts, unqualified denial cannot be said to be a single defense; if the prosecution wants to show the defendant is guilty as to all alleged victims, it must prove its case as to each beyond a reasonable doubt. The defense here thus questions the strength of the prosecution’s case with respect to each of the three alleged victims. This translates into three separate defenses. A reasonable juror, evaluating inconsistent and discrepant testimony among numerous victims and other witnesses testifying to the same events, and instructed that the offense on which he is asked to decide guilt or innocence is continuous sexual abuse against a child, might find the prosecution’s evidence, in whatever permutation, creditable with respect to one alleged victim but not another, and another juror the converse. A verdict that says defendant is guilty of having abused only one or another of three alleged victims does not, then, necessarily imply the jury rejected the only defense offered. (Cf. People v. Deletto, supra, 147 Cal.App.3d at pp. 466-474.) Had the verdict been in the conjunctive instead of the disjunctive, one could say defendant necessarily got a unanimous verdict. (See People v. Scofield, supra, 203 Cal. at pp. 710-711 [suggesting that if a defendant is found simply “guilty as charged” in a single count conjunctively pleading multiple offenses, the conviction may stand if the evidence is sufficient to support each and every one of the separate offenses charged].) As it is, we can only speculate; the nature of the evidence precludes our being able to find the jury’s verdict necessarily implies the jury unanimously agreed defendant molested all his alleged victims as charged:
Possibility of Juror Divergence
Robert Sr., an accomplice, an admittedly poor historian, and one with motive to fabricate (or embellish) and shift blame to defendant, described “circle” sex in the garage, said to have occurred about 20 times in any one month during 1990, particularly June and July, involving all the adults and all the children, generally in the evening after dinner, and in which, among other activities, the men were said to have sodomized the children and to have made the girls orally copulate them. Robert said specifically that he saw defendant frequently sodomize his three alleged victims, Robert Lee, Dorothy and Robert Silas, and that defendant frequently had sexual intercourse with all the girls, including Dorothy. Robert recalled a family outing to Lake Siskiyou on July 4, 1990, where he observed defendant sodomizing Robert Lee. The testimony thus describes (albeit generically) conduct that, if Robert Sr. were believed, has defendant committing lewd conduct with each of his alleged victims (sodomy with Robert Silas and Robert Lee; sodomy, oral copulation and sexual intercourse with Dorothy) at least three times over a period not less than three months (20 times although Robert Silas said he was molested by defendant, it was only over a two-month period of time, not enough to constitute continuous sexual abuse within the meaning of section 288.5. Moreover, contrary to what Robert Sr. said he saw, Robert Silas said defendant never sodomized him, and there was no physical evidence to indicate Robert Silas was abused in the manner described by Robert Sr. And neither Ella nor Dorothy said she saw defendant molest Robert Silas; Ella and Dorothy said defendant molested none of the children. A juror would have to both credit Robert Sr.’s testimony and discredit Robert Silas’s testimony and the testimony of other children to find defendant guilty as to this alleged victim. Assuming again that the jury heeded the accomplice instructions, a reasonable juror might have been disinclined to do that. The jury’s verdict does not necessarily preclude the possibility that at least one juror entertained a reasonable doubt the prosecution proved its case as to Robert Silas.
A survey of pertinent cases indicates that error in not giving a unanimity instruction is very nearly reversible per se. (See People v. King (1991) 231 Cal.App.3d 493, 499-502 (possession of methamphetamine based on two or more separate and distinct units of contraband, with evidence as to each from which a reasonable juror could have found it was possessed exclusively by someone else and from which a jury arguably could have created a patchwork verdict; if this is possible, then there is no way to be positive, absent a unanimity instruction, that the verdict was unanimous as to a particular criminal act, and it is possible the defendant was found guilty based on a combination of different criminal acts determined in each case by less than all 12 jurors; conviction reversed for failure to give unanimity instruction; no discussion of prejudice, which seems to be assumed from the error]; see also People v. Wesley, supra, 177 Cal.App.3d at p. 401; People v. Moore (1983) 143 Cal.App.3d 1059, 1063-1066; People v. Espinoza, supra, 140 Cal.App.3d at pp. 568-569; People v. Crawford, supra, 131 Cal.App.3d at pp. 599-600; People v. Ferguson, supra, 129 Cal.App.3d at pp. 1020-1021; People v. Hefner, supra, 127 Cal.App.3d at pp. 96-97; People v. Madden, supra, 116 Cal.App.3d at p. 219; People v. McNeill, supra, 112 Cal.App.3d at pp. 335-336.)
If a jury could have disagreed on the facts yet found the defendant guilty of the offense charged, and if the verdict is unresolvably ambiguous, error in not giving a unanimity instruction is reversible.
In this case, the jury’s verdict is unresolvably ambiguous, [FOOTNOTE 11] much like the verdict in People v. Wesley, supra, 177 Cal.App.3d 397. In Wesley, the defendant was charged in one count with possession for sale of a controlled substance, “to wit, cocaine and heroin” — two separate offenses. (Emphasis added.) The evidence tended to show the defendant possessed both cocaine and heroin, each found in a separate and distinct location. The jury was instructed that “[e]very person who unlawfully possesses for sale any controlled substance, such as cocaine or heroin, is guilty of the crime of possession for sale of a controlled substance.” [FOOTNOTE 12] (Id. at p. 400, orig. emphasis.) The jury’s verdict found the defendant guilty of “Possession for sale [of] a controlled substance, to wit, cocaine or heroin . . . .” (Id. at pp. 400-401, orig. emphasis.) Because the evidence disclosed two discrete ways in which the defendant could have violated the charged code section, a unanimity instruction was necessary; “Otherwise, some of the jurors might base their verdict on the cocaine while the other jurors base theirs on the heroin, and the fundamental principle that a criminal conviction requires a unanimous jury verdict would be violated.” The court continued, “If a unanimity instruction had been given, the ambiguity in the verdict might have been treated as a harmless technical defect, waived by appellant’s failure to object at the time the verdict was announced. [Citation.] However, without the unanimity instruction, the verdict fails to resolve the ambiguity presented by the evidence. Under these circumstances, the conviction must be reversed.” (Id. at p. 401; see also People v. Gibson (1991) 229 Cal.App.3d 284, 286-288 [the jury’s finding on an enhancing allegation could have been based on injury to either or both of two persons, as charged in the information, but the finding did not specify whom; other than indicating all jurors believed someone was injured, the finding was ambiguous, suggesting alternately that the jurors may have agreed both persons were injured, or one and not the other was injured, or the jurors may have been divided, some finding one injured and others finding another; ambiguity not resolved by prosecution’s weak (albeit sufficient) evidence as to both victims; unanimity could not be assumed].)
People v. McNeill, supra, 112 Cal.App.3d 330, a case from this court, is also analogous. In McNeill, the defendant fired a series of gunshots in the direction of four persons. He was charged in one count with assault, alleging as a victim each of the four persons. The count thus charged four separate offenses. In an attempt to avoid confusion from this pleading error, the court, at the prosecutor’s request, instructed the jury it need not find the defendant committed an assault against each of the four named persons, only that he committed an assault against one of them. [FOOTNOTE 13] We found the instruction correct as far as it went but said the court should also have told the jury it must unanimously agree as to a single individual as the victim upon whom the assault was committed. We reversed the defendant’s conviction: “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. While it is of course possible that the jurors agreed unanimously as to a particular victim of the assault, such agreement would necessarily be fortuitous in the absence of a proper instruction. More to the point, on the record before us we have no way to ‘gauge the precise effect’ (People v. Gainer (1977) 19 Cal.3d 835, 854 ) of the instructional lacuna upon the verdict actually rendered. Since we cannot say that the jurors agreed unanimously upon the act constituting the offense charged . . . . we have no assurance that a miscarriage of justice did not occur.” (112 Cal.App.3d at pp. 335-336; accord People v. Madden, supra, 116 Cal.App.3d at pp. 215-219 [substantial evidence on each of several separate and distinct sex acts, and defendant could have been charged with each but was charged with less; reversal required because “determination of guilt is for a jury, not this court. No one can say from this record that the jurors did all agree on a particular offense . . . .”]; People v. Hefner, supra, 127 Cal.App.3d at pp. 96-97 [evidence (not recited in opinion) of more than one act on which jury could have convicted on each of multiple charged counts, compounded by confusing, inconsistent and discrepant (yet sufficient) testimony of multiple victims as to dates, times and sequence, required unanimity instruction; “We have no way to gauge the effect of this error. Since we cannot assume the jurors unanimously agreed on the act constituting the offense charged, we are unable to say a miscarriage of justice did not occur”]; People v. Ferguson, supra, 129 Cal.App.3d at pp. 1020-1021 [defendant charged in one count with check fraud involving 35 separate instances of passing bad checks to over 20 payees over a two-month period of time; unanimity instruction on particular act or acts constituting the offense required because it was possible, in reaching a dollar amount required for a felony conviction, the jurors aggregated different acts; conviction must be reversed because there is no way to gauge the precise effect of the instructional error]; People v. Moore, supra, 143 Cal.App.3d at pp. 1063-1066 [defendant convicted of shooting at an inhabited dwelling, which could have been supported by any one of four separate and distinct acts, involving more than one house and more than one potential victim; unanimity instruction required, otherwise the verdict is open to the unacceptable possibility of conviction despite juror disagreement; the verdict could not be matched with certainty to any single one of the acts shown by the evidence; error not harmless and conviction reversed because unanimity cannot be assumed].)
The verdict’s ambiguity, compounded by the vague, confused and conflicted evidence the jury had to consider, makes it impossible to tell, in the absence of a unanimity instruction, whether the jury unanimously agreed on some one child of the three alleged victims in support of its verdict. If there is any unanimity in this verdict, it is fortuitous. With that uncertainty, the instructional omission cannot be said to have been harmless.
The judgment is reversed.
BLEASE Acting P. J.
All undesignated references to a section are to the Penal Code.
The information charged, in the alternative, one count of lewd conduct in that defendant, “on or about June and August, 1990, (‘Summer’),” committed an act of sexual intercourse with Dorothy, a child under the age of 14 (§ 288, subd. (A)); and one count of lewd conduct in that defendant, “on or about June and August 1990, (‘Summer’),” committed an unspecified sexual act with Robert Silas, a child under the age of 14 (§ 288, subd. (a)).
The jury was instructed in the language of CALJIC No. 17.03 to acquit defendant on the alternative charges (see ante, fn. 2) if it found him guilty of the section 288.5 charge. The verdict from, however, directed the jury not to give a verdict on section 288.5 charge. Accordingly, the jury did not specify a verdict on the alternative charges. We have no occasion to consider the effect of this omission. (Cf. People v. Blair (1987) 191 Cal.App.3d 832.)
As defendant capsulizes it, “THE COURT ERRED IN PERMITTING THE JURY TO FIND APPELLANT GUILTY WITHOUT UNANIMOUSLY DECIDING WHO DID WHAT TO WHOM.” The question in this case, as it involves jury instruction, centers only on the “to whom” element of that equation. Section 288.5, subdivision (b) 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.” The jury was instructed accordingly. The instruction is legitimate as far as it goes (see People v. Higgins (1992) 9 Cal.App.4th 294) but, in a case like this, must account for multiple victims alleged in a single case.
Defendant was tried jointly with his wife, Abbie Slemp, and his sister-in-law, Ruth Lathrop, who were found guilty of related charges arising out of the same set of facts. All three have separately appealed, which appeals are being separately decided (C011537 (Abbie Slemp) and C011473 (Ruth Lathrop)).
A corollary of the Scofield rule is the rule derived form People v. Castro (1901) 133 Cal. 11 and People v. Williams (1901) 133 Cal. 165, that “when the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, 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 beyond a reasonable doubt that defendant committed the same specific criminal act.” (People v. Gordon (1985) 165 Cal.App.3d 839, 853 and cases there cited, orig. emphasis & fn. omitted.) This is distinguishable, however, form a case in which the accused is charged with a single offense that the evidence shows could have been committed in more than one way. This is “theory of the offense,” on which jurors need not agree. (See, e.g., People v. Mitchell (1986) 188 Cal.App.3d 216, 220-222; cf. People v. Melendez (1990) 224 Cal.App.3d 1420, 1433-1434 [multiple theories based on different act and relying on different evidence requires unanimity]; People v. Gary (1987) 189 Cal.App.3d1212, 1217-1218; see also People v. Failla (1966) 64 Cal.2d 560, 567-568 [distinguishing “theory of the offense” form violation of a statute under which any one of several different discrete criminal events is sufficient to constitute the charged offense].)
The “act” on which the jury must unanimously agree beyond a reasonable doubt is the offense as it is defined by statute. (See People v. Forbes (1985) 175 Cal.App.3d 807, 816-817.) In this case that “act” is engaging in three or more acts of lewd conduct, over a period of time not less than three months, which a child under the age of 14. (§ 288.5, subd. (A).) The offense as defined contemplates only one victim. (See § 288.5, subd. (c) [“A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim.”].)
In so phrasing it, the People suggest prejudice is measured by the Watson standard. Prejudice from error in failing to give a unanimity instruction is measured by the Chapman standard, i.e., whether the error was harmless beyond a reasonable doubt. (People v. Gordon, supra, 165 Cal.App.3d at p. 855; People V. Deletto (1983) 147 Cal.App.3d. 458, 471.) Whether it is possible the jurors could have disagreed among themselves is a threshold question going to whether a unanimity instruction was necessary in the first instance (see People v. Schultz (1987) 192 Cal.App.3d 535, 539-540), a point the People seem to recognize.
This notion is complicated by the trial court’s misreading of the aiding and abetting instruction, telling the jury a person aids and abets the commission of a crime when he, “one, with knowledge of the unlawful purpose of the perpetrator, or, two, with the intent or purpose of permitting, encouraging or facilitating the commission of a crime, by act or advice, aids, promotes, or encourages the commission of the crime.” (Emphasis added.) The disjunctive in that instruction would impermissiblity allow conviction based on passive knowledge. This was then compounded by the prosecutor’s argument to the jury that “you can’t stand around while your little ones are being sexually attacked and do nothing. And if you do, you’re guilty of the offense. You can’t do it . . . . It seems that you can’t sit there and work on the . . . freezer . . . or cleaning the garage, while all your kids are being over here abused because it is aiding and abetting. It is assisting the perpetrator. If you let that happen, you’re guilty of the offense.”
To the extent the People’s argument turns on the notion that the jury had only two choices – either defendant molested all the children or he molested none of them – People v. Jones (1990) 51 Cal.3d 294 suggests the jury should have been instructed it must be unanimous in that choice: “[W]hen 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 which, in addition to allowing a conviction if the jurors unanimously agrees the defendant committed all the acts described by the victim.” (Id. at p. 322.) The People can hardly rely on the very reason an instruction was required in the first place to say its omission was harmless.
The jury’s finding on the allegation that defendant occupied a position of special trust (father and uncle) during the commission of the offense did not specify what position it found defendant to have occupied. That could have resolved, but did not, the ambiguity in the verdict, because defendant was father to two of the alleged victims, Dorothy and Robert Silas, and an uncle to the third, Robert Lee. Thus, for example, had the finding specified the position of special trust as uncle, that would apply to only one of the victims, and then it could be said the jury was unanimous defendant committed continuous sexual abuse against Robert Lee.
In similar fashion, the jury here was instructed, “Every person who either resides in the same home with the 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 fourteen 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 fourteen 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, paren a, of the Penal Code.” (Emphasis added.) “In order to prove such crime, each of the following elements must be proved: one, a person is a resident in the same house with a minor child or had recurring access to a minor child; and two, 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 a child under the age of fourteen years at the time of the commission of the sexual or lewd conduct.” (Emphasis added.)
This is eerily like the instruction the prosecutor proposed in this case for the same reason. It would have told the jury, “In order to return a guilty verdict on any count in which several victims are named, it is not necessary for the prosecution to prove that every child named in the complaint was a victim. If you find that only [one] child was victimized you may nonetheless return a verdict of guilty for that count.” Defendant objected to the instruction for unspecified reasons. The court said it would reserve the instruction and discussion on its propriety until it appears the issue might be a problem for the jury during deliberations. The question did not arise, at least not in any communication the jury had with the court. When the prosecution told the court he had “authority” for the giving of this instruction, we wonder whether he had McNeill in mind. If so, he should have been alerted to the unanimity problem.