Filed 1/24/20 P. v. Carbajal CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE CARBAJAL,

Defendant and Appellant.

C084752

(Super. Ct. Nos. STK-CR-FE-2015-0005504, SF130698A)

SUMMARY OF THE APPEAL

A jury found defendant guilty of sexually abusing his daughters, M. and P. The trial court sentenced defendant to 66 years and four months to life in prison, and ordered him to pay various fines, including a fine of $10,000 pursuant to Penal Code section 288, subdivision (e) (undesignated section references are to the Penal Code), and a fine of $5,000 pursuant to section 294, subdivision (b).

On appeal, defendant argues: (1) the trial court abused its discretion and violated his right to due process of law when the court refused to allow him to present evidence that, shortly before M. reported that defendant had been molesting her to her school and to authorities, she told a defense witness she thought she might be pregnant and feared her parents might disown or kill her; (2) the trial court erred when it instructed the jury with CALCRIM No. 318 and did not tailor the instruction to exclude M.’s fresh complaint statements from the instruction; (3) this court must reverse the trial court’s finding of guilt on two of the counts with which he was charged because the trial court gave an erroneous unanimity instruction; and (4) the fines the trial court imposed under sections 288, subdivision (e), and 294, subdivision (b), must be vacated because the trial court did not understand that it had discretion in imposing those fines. We remand the matter for the trial court to reconsider the amount of fines it imposed under sections 288, subdivision (e), and 294, subdivision (b), but otherwise we affirm the judgment.

FACTS

P. was born in 1990. According to P.’s testimony, defendant began touching her sexually during a trip to Mexico that she took with him toward the end of her third-grade year in school. When P. was about 10, defendant began to regularly touch her in a sexual manner. At first, defendant would put his penis near P.’s vagina or his fingers in her vagina a few times per week. When P. was between 11 and 12, defendant began touching her breasts and penetrating her vagina with his penis. Defendant continued to have sex with P. one to three times a week until she was 19.

M. is approximately 10 years younger than P. and was born in October 1999. M. testified that defendant began touching her sexually when she was 10 or 11 years old. Defendant began to regularly touch M. over and under her clothes and he would stick his fingers in her vagina. By the time M. was about 12, defendant regularly would penetrate her vagina with his penis, and ask her to orally copulate him. M. indicated the sexual touching, intercourse, and oral copulation continued on a regular basis until she was about 15, when she began running away from home.

M. tried to tell her mother about the abuse in November 2014, but her mother did not believe her. One of M.’s brothers testified that she told him and another brother about the abuse a little over two weeks before defendant was arrested, and they told her to seek professional help if her allegations were true. Another witness testified that sometime between July 20, 2014, and October 31, 2014, M. told one of her brother’s and his wife that her father had raped her. In January 2015, M. reported the abuse to a school counselor, which resulted in defendant’s arrest.

LEGAL PROCEEDINGS

The People alleged and the jury found defendant guilty of 10 felony counts related to defendant’s molestation of his daughters. Count 1 was for the continuous sexual abuse of a child under the age of 14 in violation of section 288.5, subdivision (a); counts 2, 3, and 4 were for the commission of lewd acts on a child under 14 in violation of section 288, subdivision (c); counts 5 and 6 were for the commission of lewd acts on a child aged 14 or 15 in violation of section 288, subdivision (c)(1); counts 7 and 8 were for the commission of unlawful intercourse with a minor more than three years younger in violation of section 261.5, subdivision (c); and counts 9 and 10 were for incest in violation of section 285. The convictions on counts 1 through 4 were enhanced under section 667.61, subdivision (e)(4), because the jury found defendant committed the offenses against more than one victim.

The defendant was sentenced as noted above.

Additional background details are provided below as relevant.

DISCUSSION

I

Exclusion of Testimony that M. Believed She was Pregnant

Defendant contends the trial court abused its discretion when it prohibited him from eliciting testimony from a witness that M. had said she believed she might be pregnant a couple of days before she reported defendant was molesting her.

A. Background
B.
Defendant filed a pretrial motion to introduce evidence regarding M.’s sexual conduct for impeachment purposes. Defendant argued that M.’s prior sexual conduct was relevant to her credibility and demonstrated M. obtained knowledge of sexual acts from sources other than defendant. The declaration defendant filed in support of the motion mentions M. engaging in sexual activity, but it does not allege M. believed she might be pregnant when she reported the abuse to her school counselor. Defendant argued information regarding M.’s sexual activity was relevant because it supported defendant’s theory that M. fabricated the molestation story because she wanted to get him–her strict father–out of her life. Defendant did not argue in the moving papers that M. had made the allegations out of a fear that defendant would disown her or kill her if he learned about her sexual activities or a possible resultant pregnancy. As part of its motions in limine, the People asked to exclude mention of the victims’ sexual histories.

During a pretrial hearing, the trial court heard arguments regarding defendant’s motion. The defense identified the evidence at issue as dealing with M. “engaging in unlawful sex with a minor and other people” as part of a larger pattern of “out-of-control” behavior by a teenager. During that hearing, defense counsel indicated it had discovered from a source that M. “was saying she was pregnant by her boyfriend and lying.” The People indicated they had not yet received any statements to this effect, and the trial court took the matter under advisement.

The matter was discussed again on the first day of the trial, outside of the presence of the jury. At the time, defense counsel stated she had a witness who could testify that after M. went away for a weekend, “she came home, and . . . had a conversation” with the witness during which M. stated she “believed she had gotten pregnant that weekend . . . , expressed that she didn’t want to tell her parents,” and stated she “believed her parents, including Mr. Carbajal, would disown her . . . , or even kill her.” Defense counsel noted that “within one to two days after the conversation, Mr. Carbajal was arrested.” Defense counsel argued that a “pregnancy scare would provide [a] proper motive” to “fabricate a story of molestation.” Indicating defendant, “ran a very strict, very religious, very controlled home,” the defense argued evidence of the alleged pregnancy scare should be let in because “[a] pregnancy scare is so much more than just illicit drug use or running away.”

Citing People v. Bautista (2008) 163 Cal.App.4th 762 (Bautista) and Evidence Code sections 352 and 782, the trial court ruled to exclude evidence that M. thought she might be pregnant. The trial court allowed that, “the [d]efense can go into the other aspects of her so-called runaway behavior, the reasons, school problems, problems with the family.” The trial court also allowed the defense to elicit testimony that the witness had “gotten in trouble that weekend and she was very afraid to tell her parents about that trouble.”

In keeping with the trial court’s ruling, defendant’s counsel had the following exchange with a defense witness:

“Q. Okay. So two days after [she returned from running away], did M[.] tell you she was in trouble?

“A. She told me about her friend Jose.

“Q. Did she say that she believed her parents were going to kill her because of some trouble she got into that weekend?

“A. Yes.

“Q. She thought her parents may even disown her?

“A. Yes.

“Q. Did she seem scared when she told you this?

“A. Yes. [¶] . . . [¶]

“Q. And then one to two days later, Mr. Carbajal was arrested?

“A. Yes.”

Witnesses also testified that in the two years leading up to defendant’s arrest, M. grew increasingly rebellious. For example, M. began talking back and refusing to help around the house, and her family found drugs and alcohol in her room.

C. The Trial Court did not Abuse its Discretion When it Excluded Evidence that M. Feared She Might be Pregnant.
D.
Evidence of the prior sexual conduct of a molestation or sexual assault victim is generally excluded at trial. (People v. Woodward (2004) 116 Cal.App.4th 821, 831.) Evidence Code section 782 provides a limited exception that allows the admission of evidence in some prosecutions, including in prosecutions for violations of Penal Code section 288.5, for impeachment purposes if movants follow certain procedures and courts make certain findings. (Evid. Code, § 782, subd. (a).)

If the court finds the proposed evidence is relevant for impeachment purposes and not inadmissible pursuant to Evidence Code section 352–which permits a trial court, “in its discretion,” to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury”–the court may then make an order “stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted.” (Evid. Code, § 782, subd. (a)(4).) As used in Evidence Code section 782, sexual conduct “encompasses any behavior that reflects the actor’s or speaker’s willingness to engage in sexual activity. The term should not be narrowly construed.” (People v. Franklin (1994) 25 Cal.App.4th 328, 334.)

Evidence Code section 782, “vests broad discretion in the trial court to weigh the defendant’s proffered evidence prior to its submission to the jury and to resolve the conflicting interests of the victim and the defendant. [Citation.] In addition, the statute reaffirms the role of Evidence Code section 352 in authorizing the trial court to exclude relevant evidence which is more prejudicial than probative. [Citation].” (People v. Casas (1986) 181 Cal.App.3d 889, 895-896.) We will only overturn a trial court’s ruling as to the admissibility to prior sexual conduct evidence if an appellant can show the trial court abused its discretion. (People v. Chandler (1997) 56 Cal.App.4th 703, 711.)

We hold the trial court acted well within its discretion when the court decided to exclude evidence that M. had told a witness shortly before defendant was arrested that she thought she might be pregnant and feared the consequences she might face from her parents.

Bautista, supra, 163 Cal.App.4th 762 is instructive. In Bautista the pastor and leader of an independent church was convicted of sex offenses involving two teenage girls who were members of the congregation. (Id. at pp. 765, 766-767.) The defendant was known for being strict about the separation of boys and girls, frowned upon dating, and stressed the importance of preventing teenaged pregnancy. (Id. at p. 767.) Daniel, the brother of one of the two victims, Roxana, had been sending the other victim, Anna, e-mails, and, at the defendant’s advisement, Anna’s parents told her she could only interact with Daniel at church and restricted her access to Roxana. (Id. at p. 771.) A member of the church testified that Anna hated the defendant because he “squashed” her relationship with Daniel. (Id. at p. 772.) During the trial, the defense sought to introduce evidence to the jury about a meeting he had with Anna’s parents prior to when the two girls made their allegations. (Id. at p. 782.) According to defense counsel, the defendant had spoken with Anna’s parents about her relationship with Daniel and accused them of having a sexual relationship. (Ibid.) The conversation was prompted by the fact that the prior night Anna and several other teenagers had spent the night together, and witnesses reported that Anna and Daniel were “kissing under a blanket.” (Ibid.) Anna had admitted she gave Daniel hickeys, but denied any sexual intercourse. (Ibid.) Defense counsel argued the specifics of Anna and Daniel’s conduct needed to be presented to the jury because it “was the only way for the jury to evaluate whether the conduct involved was serious enough to cause Anna to falsely accuse defendant.” (Ibid.) The trial court disagreed and allowed defense counsel to cross-examine the girl regarding “the incident in which she was told, at defendant’s direction, that she must end her relationships with” Daniel and Roxana, but excluded any questions about the hickeys or statements regarding “ ‘under the blanket or anything like that.’ ” (Ibid.) The trial court reasoned that although the girl’s “alleged hatred of defendant and defendant’s interference in her relationships were relevant facts, the ‘sexual aspect’ of the incident was not ‘probative at all.’ ” (Ibid.)

On appeal in Bautista, the defendant argued that the trial court committed an error in excluding the evidence regarding Anna’s sexual conduct, in violation of his due process and confrontation clause rights. (Bautista, supra, 163 Cal.App.4th at p. 781.) The Court of Appeal found no error. (Ibid.) The court reasoned that during trial the “jury heard more than once that Anna knew defendant had advised her parents to keep her away from Daniel and Roxana, and Leonardo testified that Anna hated the defendant because of this interference.” (Id. at p. 783.) The court reasoned, “[i]t is the repercussions of the sexual conduct with Daniel, and not the conduct itself, which ultimately are relevant to understanding Anna’s alleged bias against defendant.” (Ibid.) The defendant argued that “nevertheless . . . introduction of the sexual conduct was necessary to show the ‘tone and flavor of Anna’s hatred.’ ” (Ibid.) The Court of Appeal was not persuaded. (Ibid.)

Much like in Bautista, the trial court allowed defendant to introduce ample evidence to suggest M. was motivated by defendant’s strict nature and interference with her life to report him. Moreover, the defense elicited testimony that shortly before M. reported the abuse to a school counselor, M. told a witness she thought she was “in trouble” after spending time with a boy and she felt that, as a result of this “trouble,” her parents might disown or even kill her. In short, defendant was able to introduce evidence regarding the repercussions of M.’s alleged conduct and how those repercussions potentially made M. feel about defendant’s role in her life, which was what was particularly relevant to defendant’s argument regarding M.’s possible motives in reporting defendant sexually abused her. Defendant takes the position that “appellant was not seeking to introduce evidence of the sexual conduct that caused M[.] to think that she was pregnant, only the resulting pregnancy itself.” If this statement is genuine, defendant’s aims were satisfied by the trial court’s ruling: the court allowed the jury to hear evidence of the key result of M.’s actions, which is that she feared her behavior had crossed the line to where her parents might disown or even kill her.

Defendant’s efforts to undermine the trial court’s ruling are not persuasive. First, defendant argues Bautista is dissimilar from this case, while other cases in which courts allowed in sexual conduct evidence are more on point. This is wrong. In two of the three cases defendant relies on, the evidence the Court of Appeals allowed in reflected that the alleged victims had previously made false statements that others had victimized them in the same fashion the defendants in those cases had allegedly harmed them. (See People v. Franklin, supra, 25 Cal.App.4th at p. 336 [“if the trier of fact found it true that [the victim] falsely stated that her mother sexually molested her, this statement would be relevant to the trier of fact’s determination of her credibility” that the defendant was molesting her]; People v. Adams (1988) 198 Cal.App.3d 10, 18 [finding that in a rape prosecution it “was error to exclude otherwise admissible evidence that [the victim] had on two previous occasions falsely accused others of rape”].)

As a preliminary matter, while one must generally engage in sexual conduct to believe she is pregnant, one need not have ever engaged in sexual conduct to make a false accusation of sexual abuse. Additionally, evidence that an alleged victim has previously made false accusations that someone committed the same crime against her for which a defendant is standing trial says far more about the credibility of the victim and has a higher probative value than evidence that an alleged victim–who had been telling her family for months that she was being abused–believed a couple days before she made a report to a counselor that her strict parents might be particularly angry due to her recent behavior. In the third case defendant claims is more like this case than Bautista, People v. Varona (1983) 143 Cal.App.3d 566, the Court of Appeal stressed its findings were based on the “particular facts” of that case, where evidence that the alleged victim was a prostitute that was known for oral copulation and regularly worked the area she was allegedly attacked both (a) shed light on her story that she was in the area because her friend refused to drop her at a nearby bus stop, even though it was late at night, and (b) directly supported a defense theory that she was not forced to orally copulate him but did so voluntarily. (Id. at pp. 569-570.) The evidence that M. thought she might be pregnant a couple days before she took her complaints to someone outside the family simply lacks the relevance and probative force as to her credibility that the evidence at issue in the Varona decision.

Defendant’s argument that the trial court violated his constitutional rights when it excluded evidence that M. thought she might be pregnant is also disposed of by Bautista. There, the court held that in excluding evidence regarding a victim’s sexual conduct, there had been “no violation of defendant’s right to due process of law or of the confrontation clause.” (Bautista, supra, 163 Cal.App.4th at p. 783.) This is so because while “ ‘the complete exclusion of evidence intended to establish an accused’s defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right.’ (People v. Cunningham (2001) 25 Cal.4th 926, 999.)” (Bautista, supra, 163 Cal.App.4th at p. 783.) Furthermore, “ ‘[a] trial court’s limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted. [Citations.]’ (People v. Quartermain (1997) 16 Cal.4th 600, 623–624.)” (Bautista, supra, 163 Cal.App.4th at p. 783.)

Here, the fact that M. thought she might be pregnant was a subsidiary point to the fact that witnesses saw her as out-of-control, her father was strict, and she had gotten into some sort of trouble that she feared would greatly upset her parents shortly before she reported her father was abusing her to her school counselor. More importantly, the jury likely would not have had a significantly different view of M.’s credibility had they been informed M. told someone she thought she might be pregnant shortly before she reported the abuse to the counselor.

II

CALCRIM No. 318 Instruction

Defendant argues the trial court erred in giving CALCRIM No. 318, which explains that the jury could consider prior statements for the truth asserted therein, without modifying the instruction to indicate it did not apply to fresh complaint testimony. Defendant waived this argument by not raising it at trial, and, in light of the totality of the jury instructions, the trial court committed no error in providing the instruction without modification.

A. Additional Background
B.
As part of its case in chief, the People called Mindie Brown, a school psychologist who worked at the high school M. attended in January 2015. Brown testified that M. met with her after M. almost got into a fight with another student, and there had been a rumor that M. was “having a [sexual] relationship with her father.” Brown testified that during that initial meeting, she had informed M. that she was a mandated reporter and explained what that meant. Brown further testified that on a later date, M. came to her and said her father was having sex with her and that when she was younger she had walked in on her father having sex with her older sister.

During Brown’s testimony, the trial court explained to the jury that Brown’s testimony was “fresh complaint” testimony. The trial court said to the jury, “[h]ere’s the jury instruction you’ll be getting. It goes as the following: ‘Witnesses’–i.e., Ms. Brown, okay–‘have testified concerning initial complaints of sex abuse by certain of the victims.’ In this case [M.], okay. ‘Such testimony by Ms. Brown is admitted solely to explain their actions, what she did, okay, and to establish that a complaint was made by a victim. The evidence is not admitted for the truth’–and we’ve already talked to [M.], okay, and [P.]–‘and should not be considered for any other purpose.[’] So it’s fresh complaint. Ms. Brown is not here to testify about the truth of the statement, just that you’ve got a complaint, right?”

Additionally, before deliberations, the trial court orally gave the following instruction to the jury: “[w]itnesses have testified concerning initial complaints about sexual abuse by certain of the alleged victims. Such testimony by these witnesses was admitted solely to explain their subsequent actions and to establish that a complaint was made by certain of the alleged victims. This evidence was not admitted for the truth of the matter and should not be considered for any other purpose.” The court also included this instruction in the written copy of jury instructions. The court also instructed the jury orally and in writing with CALCRIM No. 303 that “[d]uring the trial, certain evidence was admitted for a limited purpose–and I mentioned that to you guys as we went through some of it–you may consider that evidence only for that purpose and for no other.”

After giving CALCRIM No. 303, the trial court provided the jury with CALCRIM No. 318, stating, “[y]ou’ve heard evidence of statements that a witness made before the trial. If you decide the witness made the statements, you may use the statements in two ways: One, to evaluate whether the witness’ testimony in court is believable; and, two, that the information in the earlier statement[] is true.” Defendant concedes that it does not appear that trial defense counsel objected to or otherwise asked the trial court to modify CALCRIM No. 318.

C. Defendant Forfeited His Claim of Instructional Error with Respect to CALCRIM No. 318
D.
“Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Andrews (1989) 49 Cal.3d 200, 218; see also People v. Guiuan (1998) 18 Cal.4th 558, 570.) As such, because he did not propose any modification to CALCRIM No. 318 in the trial court, defendant forfeited his claim of instructional error. (See People v. Rangel (2016) 62 Cal.4th 1192, 1223 [defendant forfeited his claim of instructional error regarding a flight instruction by failing to propose a modification at trial].)

E. The Trial Court’s Use of CALCRIM No. 318 was not Erroneous
F.
Even if defendant has not forfeited his contention that the version of CALCRIM No. 318 given by the trial court was erroneous, the contention lacks merit. Here, defendant’s claim is not that CALCRIM No. 318 was incorrect. Rather, defendant’s claim appears to be that–despite the fact that the trial court gave a specific limiting instruction as to the use of fresh complaint testimony–the jury would have taken CALCRIM No. 318 as permission to use Brown’s fresh complaint testimony for the truth of the facts asserted in the complaint. But a single instruction to a jury “may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” (Cupp v. Naughten (1973) 414 U.S. 141, 146-147; see also People v. Haskett (1990) 52 Cal.3d 210, 235.) In performing this evaluation, “[w]e presume that jurors understand and follow the [trial] court’s instructions.” (People v. Gray (2005) 37 Cal.4th 168, 231.) Thus, “[w]hen an appellate court addresses a claim of jury misinstruction, it must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner.” (People v. Wilson (2008) 44 Cal.4th 758, 803.)

Here CALCRIM No. 318 was given along with (1) an instruction that specifically advised the jury on the limited use of fresh complaint evidence, an instruction that, in addition to being given as part of the general jury instructions, was stressed at the time Brown testified, and (2) CALCRIM No. 303, which admonishes jurors that when evidence was admitted for a limited purpose, they could consider that evidence for that purpose and no other.

Considered in context with all of the instructions, it is not reasonable to conclude the jury read CALCRIM No. 318 to allow it to consider Brown’s testimony as anything other than fresh complaint testimony.

III

Unanimity Instruction

The trial court gave a unanimity instruction for counts 2 through 10. Defendant argues the version of the unanimity instruction the trial court gave was erroneous because it did not require jurors to unanimously conclude defendant committed at least the number of offenses the charge alleged he committed in each time period covered by the charge. Defendant concedes this alleged defect was partially cured with respect to counts where the charge accused defendant of committing only one crime during the time period at issue–i.e., for counts 4 through 10–but argues the error “deprived [defendant] of his constitutional right to a unanimous jury when it came to counts 2 and 3” which both alleged he committed a crime within the February 8, 2002, through February 7, 2003, time frame. Essentially, defendant’s position is that, as framed, the jury was not informed that it would need to unanimously find defendant committed two separate criminal acts in one single time frame to find him guilty on two separate counts. We need not reach a conclusion as to whether the unanimity instruction and other instructions correctly informed the jury it would need to unanimously conclude defendant criminally violated P. twice when she was 12 in order to find defendant guilty of both counts 2 and 3. It is clear that even if the jury believed it could have found defendant guilty of both counts based on a single event, the jury unanimously accepted testimony that defendant criminally abused P. multiple times when she was 12.

A. Additional Background
B.
Counts 2 and 3 both alleged defendant committed lewd acts upon a child, P., between February 8, 2002, and February 7, 2003, when P. was 12 years old. Counts 4 through 10 each alleged defendant committed a sexual offense against P. each year from the time P. was 13 to the time she was 19, with count 4 alleging defendant committed an offense against P. when she was 13, count 5 alleging defendant committed an offense against P. when she was 14, and so on through count 10 which alleges defendant committed an offense against P. when she was 19.

P. testified that her family moved from one residence to another between her sixth and seventh grade years in school, when she was 12. Prior to the family’s move, defendant would take P. with him when he went to orchards to collect firewood and rub his penis on her vagina and penetrate her vagina with his fingers.

Once the family moved, the touching changed. By the time the family moved, defendant had begun touching P.’s breasts and penetrating her vagina with his penis. P. vividly recalled the first time defendant had sex with her. P. testified the first time defendant penetrated her vagina was when the family’s new home, a trailer, was still being put together. P. testified that on that day, the family had been staying with her uncle, and defendant told his wife–P.’s mother–that he needed to check on the trailer because he had a bad feeling about it. P. testified that defendant said he needed to bring her with him in case he needed her to “translate for him or something.” P. testified that no one was at the trailer when she and defendant arrived. Once they arrived at the trailer, defendant took P. into the closet of one the bedrooms, pulled down her pants, told her things might hurt a little and there might be blood but everything would be fine, and then penetrated her with his penis.

P. testified that after the first time defendant penetrated her, and once the family moved into the trailer, he regularly would come into her room and have sex with her and that this continued until she was 19. Additionally, P. testified that once the family moved into the new trailer, defendant would also have sex with her when he took her to orchards to work with him, and in the family truck and the family van.

During closing argument, the People stated, “[c]ount Two is a violation of Penal Code Section 288 (a), lewd acts upon a child under 14. And the period of time is February 8th, 2002, through February 7th, 2003. And, again, the victim here is P[.] And here what we’re talking about, any touching that occurred first when she was 12. . . . [¶] Count Three is P[.] again, same time period, but any touching that occurred last. So, in other words, in that time period, I charged two counts. For the sex that was occurring at least once a week, . . . I charged two counts. And what I mean by that is . . . all 12 jurors have to believe is that at least two touchings occurred in that time period. And if you agree that two touchings occurred and you agree the type of touching that occurred, then you can find him guilty of Count Two and Count Three.” (Italics added.) Additionally, in regards to counts 2 and 3 the People stated, “[P.] testified . . . by 12 she was having sex on a consistent basis, okay. I charged a first time and a last time during that time period. . . . [S]he says sex occurred at a frequency of three times a week. She describes it as consistent sex with the defendant.”

Similarly, with respect to count 4, the People said it covered when P. “was 13 years old.” The People stated that for the applicable time period, “all 12 jurors–this is where the unanimity part is–. . . have to agree that at least one sex occurred, and that one sex occurred during that period of time.” The People indicated that, with respect to the applicable time period, the evidence the People relied on was that “P[.] testified that she had consistent sex with [defendant] and she described the frequency as three times a week.” With respect to count 5, the People noted the charge covered when P. was 14 and that the evidence the People relied on was that P. “described the frequency as being three times a week, and she talks about it being consistent.” With respect to the remaining counts, which each covered a different year of P.’s life, the People pointed to testimony by P. that the defendant consistently had sex with her during those years, though the frequency changed from three times a week, to twice a week, then once or twice a week as she grew older.

The trial court instructed the jury regarding unanimity as follows using CALCRIM No. 3500 and CALJIC 4.71.5:

“The Court has provided you with the List of Counts which set forth the crimes alleged, the time period during which the alleged crimes occurred and the name of the alleged victims.

“Unanimity Required for Counts 2 through 10:

“The prosecution has presented evidence of more than one act to prove that the defendant committed the crimes alleged in Counts 2 through 10. You must not find the defendant guilty of any crime alleged in Counts 2 through 10 unless you all agree that the People have proved that the defendant committed at least one of the acts and you all agree on which act he committed.

“Proof of Acts Within Time Period Alleged, All Counts 1 through 10:

“Also, in order to find the defendant guilty of Counts 1 through 10, you must unanimously agree upon the commission of the act(s) constituting the crime within the time period alleged in your List of Counts.”

The trial court also provided the jury with CALJIC 17.02, regarding each count serving as a separate and distinct offense, which states “[e]ach count charges a distinct crime. You must decide each count separately.”

C. Any Possible Error in the Unanimity Instruction was Harmless
D.
We need not decide whether the trial court’s unanimity instruction was erroneous because any such error would have been harmless.

There is a split of authority on the correct standard for determining if a trial court has committed harmless error when it fails to give a unanimity instruction. (People v. Vargas (2001) 91 Cal.App.4th 506, 561.) “Some cases hold that the prejudice must be deemed harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18 . . . (Chapman). Other cases hold that the test is as enunciated in People v. Watson (1956) 46 Cal. 2d 818, 836 . . . (Watson), which is whether ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (Id. at pp. 561-562.) Under either standard, there was no harm here.

The jury instruction defendant argues ought to have been used in this case is CALCRIM No. 3501, which states:

“The defendant is charged with ______________________ [in Count[s] ____________] sometime during the period of ______________________ to ______________________.

“The People have presented evidence of more than one act to prove that the defendant committed (this/these) offense[s]. You must not find the defendant guilty unless:

“1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed [for each offense];

“OR

“2. You all agree 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].”

CALCRIM No. 3501 is derived from findings made in People v. Jones (1990) 51 Cal.3d 294 (Jones). Historically, prior to Jones, courts applied an “either/or” rule to address the unanimous finding a jury would need to reach to find a defendant guilty when the number of potentially criminal acts described in a sexual abuse or assault case exceeded the number of counts charged. (Id. at p. 307.) Under this rule, “either” prosecutors would need to select specific acts to prove for each charge, “or” the court would need to instruct the jury that it must unanimously agree beyond a reasonable doubt that the defendant committed one of the specific acts alleged for each charge. (Ibid.)

In Jones, the Court considered whether it would be possible for a jury to reach a unanimous conclusion with respect to counts alleging a resident child molester defendant committed lewd and lascivious acts on a child under the age of 14 when the evidence introduced is “nonspecific or ‘generic’ ” testimony by a child victim, in which the victim is unable to “furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults” that victims of more isolated instances of crime might be able to provide. (Id. at pp. 299-300.) Our Supreme Court concluded that when a victim witness could testify with sufficient specificity as to the type of conduct involved, its frequency, and that it occurred in the requisite time frame, the testimony would be sufficient to establish the substantiality of the victim’s testimony in child molestation cases. (Id. at p. 316.) The Court advised that in resident child molester cases, “the jury should be given a modified unanimity instruction 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.” (Id. at p. 322.) Jury instructions that included this modification would reflect the fact that “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.” (Id. at p. 321.)

People v. Matute (2002) 103 Cal.App.4th 1437 is instructive when considering the impact of failing to give a modified unanimity instruction when the evidence used is generic in nature and the defense proffered is that the complaining witness is not credible.

Following the development of the unanimity instruction modification proposed in Jones, in Matute, supra, 103 Cal.App.4th at page 1439, the trial court convicted the defendant of 15 counts of forcibly raping his daughter. In addition to arguing that the court denied him due process by allowing a jury to convict him based on “vague” and nonspecific testimony–of the sort contemplated in Jones–the defendant argued that “the purported due process violation here was exacerbated by the trial court’s failure to give a juror unanimity instruction as it was required to do sua sponte.” (Id. at pp. 1443, 1447.) The Court of Appeal did not agree that the trial court erred in allowing a conviction based on generic testimony, but it did agree that the trial court erred when it failed to provide a unanimity instruction, concluding the trial court ought to have given the modified instructions described in Jones that would have allowed for a conviction “if the jurors unanimously agree on specific acts,” or “if the jury unanimously agrees the defendant committed all the acts described by the victim.” (Id. at p. 1448.) However, the Court of Appeal found that the error was harmless under both the Watson standard and the Chapman standard. (Id. at p. 1449.) This was so because between the closing arguments and other instructions there could have been “no confusion in the jury’s mind that they were being asked to decide whether appellant raped J. M. 15 times over the period from August 1999 to November 2000.” (Ibid.) Moreover, the victim’s testimony, “reflected the ongoing, repetitive nature of the rapes which had blurred together in her mind, except for [a handful of] specific occasions” and “[a]ppellant’s only defense was to deny that he ever had sexual intercourse with his daughter.” (Id. at p. 1450.)

Similar to the facts in Matute, in light of the overall jury instructions and the People’s specific admonition during its closing argument that “all 12 jurors have to believe is that at least two touchings occurred” when P. was 12 to find him guilty on counts 2 and 3 and that the People describe count 2 as being for the first time defendant had sex with P. and count 3 being the last time he touched her when she was 12, any problem with the jury instruction on unanimity was harmless under any standard. The jury understood the People were basing the counts on two separate criminal acts.

That any possible error in the unanimity instruction was harmless is buttressed by the fact that the jury found defendant guilty on counts 4 through 10. Defendant does not take the position that the unanimity instruction, when read with other instructions, was insufficient to allow for a permissible finding of guilt on counts 4 through 10, which, though each alleged one instance of assault in one year of P.’s life, were based on testimony that defendant regularly and consistently assaulted P. In taking the position that the jury instructions were insufficient to allow for finding of guilt on counts 2 and 3 because taken together the counts alleged two crimes occurred in one year, defendant is raising a distinction without a difference in light of the testimony given by P. P. testified to multiple instances of sexual intercourse every year in multiple locations–the family home, the family vehicles, and the fields where defendant collected firewood from the time she was 12 until she was 19. The only incidents she recalled with any source of specificity occurred when she was 12–the first time defendant penetrated her with his penis and the one time he tried to have sex with her at his sister’s house. This means that to find defendant guilty on counts 4 through 10–the counts that covered when P. was 13 through 19–the jury had to accept P.’s testimony that defendant had sex with her multiple times in those years, either in the family home, in one of the family vehicles, or in the fields where he worked. Given the jury did find defendant guilty on counts 4 through 10, there is no doubt the jury also accepted P.’s testimony that defendant had sex with her multiple times when she was 12. As a result, there is no reasonable doubt that the jury would have found defendant had sex with P. at least twice when she was 12 had it been specifically asked to do so, and it is not reasonably probable that the jury would have reached a different conclusion on counts 2 and 3 if the precise modified instruction defendant argues ought to have been given had, in fact, been used.

IV

The Trial Court Should Reconsider the Fines it Imposed and Make it Clear it is Exercising its Discretion

The trial court imposed various fines when it sentenced defendant. In listing the imposed fines, the trial court stated “there are a lot of fines that are mandatory,” and that “[s]ome of these are not in supplemental orders . . . but I think they’re mandatory given my research.” The trial court included on its list of fines $5,000 to be paid to the Child Abuse Prevention Fund under section 294, subdivision (a), and a $10,000 fine pursuant to section 288, subdivision (e). These two particular fines are not mandatory, but discretionary. (§§ 288, subd. (e) [“the court may . . . order the defendant to pay”], 294, subd. (a) [“the court may . . . order the defendant to pay”].)

The defendant argues the trial court committed error in imposing the subject fines, arguing the language used by the trial court reflects that the trial court erroneously believed the fines were mandatory, and that, as a result, we must vacate the imposition of the fines and remand the issue to the trial court. The People disagree that the language the trial court used demonstrates with certainty that the trial court believed the fines were mandatory, but concede that the record is ambiguous as to whether the trial court understood it could exercise discretion in determining the amount of fines to impose under sections 294, subdivision (a), and 288, subdivision (e), and take the position that this case ought to be remanded to the trial court with instructions to the trial court to clarify its intent.

Both parties agree that remand is appropriate. Because we agree with defendant that the language more strongly suggests the trial court did not understand it could exercise discretion in imposing the fines, we reverse the imposition of fines under sections 294, subdivision (a), and 288, subdivision (e), with instructions to the trial court to consider the discretionary nature of the fines in imposing them. In remanding the case, we do not intend to restrict the trial court’s ability to impose fines in the same amount if it sees fit to do so in the exercise of its discretion.

DISPOSITION

We affirm the judgment except for the fines the trial court imposed under sections 294, subdivision (a), and 288, subdivision (e). We remand the matter to the trial court to reconsider those fines consistent with section IV.

HULL, Acting P. J.

We concur:

BUTZ, J.

MURRAY, J.