Filed 7/24/15 P. v. George CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040665
                                                                    (San Benito County
         Plaintiff and Respondent,                                   Super. Ct. No. CR1000848)

         v.

FREDERICK LOUIS GEORGE,

         Defendant and Appellant.



         Defendant Frederick Louis George appeals from a judgment of conviction entered
after a jury found him guilty of two counts of lewd acts upon a child under the age of 14
(Pen. Code, § 288, subd. (a)).1 The trial court sentenced defendant to 10 years in state
prison. We conclude that the judgment must be reversed, because the trial court erred
when it failed to give a unanimity instruction.


                                              I. Statement of the Case
         An amended criminal complaint charged defendant with four counts of lewd acts
upon a child under the age of 14 (§ 288, subd. (a) – counts 1 through 4). It was alleged
that defendant engaged in substantial sexual conduct with the victim in connection with

1
         All further statutory references are to the Penal Code.
count 4. The complaint also charged defendant with: one count of forcible rape (§ 261,
subd. (a)(2) – count 5), one count of sexual penetration by foreign object (§ 289,
subd. (a)(1) – count 6), and two counts of aggravated sexual assault of a child based on
the rape and the sexual penetration (§ 269 – counts 7 and 8).
       Following trial, the jury found defendant guilty of counts 1 and 4, acquitted him of
counts 2, 3, 5, and 7, and was unable to reach a verdict on counts 6 and 8. It found the
special allegation for count 4 to be true. The trial court granted the prosecution’s motion
to dismiss counts 6 and 8.
       Defendant brought a motion for a new trial and argued, among other things, that
the trial court erred when it failed to instruct the jurors on unanimity. The trial court
denied the motion except as to the substantial sexual conduct finding for count 4.
       At sentencing, the trial court imposed the upper term of eight years for count 1 and
one-third the middle term of two years for count 4. It awarded 363 days of presentence
credit. Defendant has filed a timely appeal.


                                    II. Statement of Facts
                                     A. Prosecution Case
                                        1. Background
       Defendant and his wife Renee George adopted six children: Keith, A., Madison,
Ben, Kailey, and Leah. A. was born in April 1997. Keith was about four months older
than A. Madison was about a year younger than A. A.’s biological father was
schizophrenic and her biological mother had bipolar disorder. A. was adopted when she
was four years old. According to Ms. George, A. was confused, angry, and very difficult
to raise at that time. It required more effort by Ms. George to create a bond with A. than
with the other children. When A. was nine years old, she began therapy for detachment



                                               2
disorder. About a year later, she began therapy with Marina Boliaris, who diagnosed her
with mood disorder.
                                    2. A.’s Testimony
       A. was 15 years old at the time of trial. She was closer to defendant than to her
mother, because her mother would punish her “for unreasonable things.” Her mother
yelled at her and put her in her room, because she had not done the dishes. On another
occasion, A. lied to her mother and her mother did not speak to her for two weeks. Her
mother also emptied out A.’s closet, put a mattress and blanket in the closet, and A. lived
in the closet for a month or two.2 According to A., her mother antagonized her until she
would “flip out.”
       A. testified that “the first time [defendant] inappropriately touched” her occurred
on February 14, 2010, and later testified it was sometime after that date. Defendant woke
A. up, told her that she had been tossing and turning, and asked her to go downstairs. It
was approximately 5:30 a.m. While they were on the couch, they began watching
television and exchanged open-mouth kisses during the commercials. Defendant asked
A. if he could touch her breast. She said yes because he was her father and she “couldn’t
say no.” Defendant put his hand under her T-shirt, unhooked her bra, and touched her
breasts. When defendant left for work, A. went back to bed.
       However, A. also testified that defendant molested her on February 14, 2010,
when her mother went to Gilroy to visit A.’s grandmother.3 The other children were
watching television in the living room. Defendant had a headache. A. was lying on
defendant’s bed with him when they started kissing, “like how a girlfriend would kiss a
boyfriend.” Defendant told her not to tell anyone.

2
      Ms. George testified that it was Boliaris’s idea to use the closet as a place for A. to
calm herself. Boliaris disputed Ms. George’s testimony.
3
      A. also testified that this incident occurred after February 14, 2010.


                                              3
       On cross-examination, A. testified that a “second” incident occurred sometime
after February 14 after the inappropriate conduct on the couch. While they were in the
garage, defendant fondled her breasts over her clothing and kissed her. Her brothers and
sisters were also home at this time.
       However, on direct examination, A. did not testify to the incident in the garage.
She testified that after the incident on the couch, her mother took the children to see a
Percy Jackson movie at the end of February or beginning of March. A. was not allowed
to join them, because she had misbehaved. After taking a shower, A. began walking
downstairs. Defendant was walking upstairs to go to A.’s room. Defendant told her that
they needed to talk, took her back to her room, and told her that they had to “slow down.”
A. said okay. However, they started kissing. Defendant eventually removed her shirt,
shut the window blinds, and touched her breasts. Defendant also pulled down her pants,
put his finger in her vagina, and sucked her breasts. He tried to put two fingers in her
vagina, but she told him that it hurt. After A. told him that they should stop, defendant
asked if she “wanted to see him jerk off into the sink, and he asked if [she] wanted to
help.” He put her hands on his penis. Defendant told her that he could stop any time that
she wanted him to, but she did not want to make him angry or disappointed in her.
       A. testified on cross-examination that “there were little moments” between A. and
defendant, including one day when defendant took her to her bedroom, digitally
penetrated her, and told her “not to make a sound,” because the other children were
playing in the room across from her room. Defendant asked A. if she was going “to have
an orgasm, and [she] didn’t know what that meant.”
       A. testified on both direct and cross-examination that there was a final incident on
February 20, 2010, when her mother went on an overnight trip to Capitola. Defendant
told her that they would have “a whole night together.” Since Keith was still on the
computer, she pretended to fall asleep on the couch and then went into defendant’s

                                              4
bedroom. After A. undressed herself, she and defendant kissed. Defendant also sucked
and touched her breasts, licked her vagina, and inserted his fingers inside.4 This lasted “a
couple of hours.” When A. started to fall asleep, they took a shower together. While
they were in the shower, he asked her to suck his penis, which she did. After A. became
dizzy, they returned to the bed. Defendant tried to put his penis in her vagina, but it hurt
her. She told him to stop and he did. Defendant digitally penetrated her until she told
him to stop because she was tired. A. fell asleep. At around 4:30 a.m., defendant told her
to return to her room, which she did. When she woke up the next morning, she was in a
lot of pain and felt like she needed to urinate every five minutes.5
       A. and defendant made a “pinkie swear” that they would not tell anyone about the
incidents. Defendant told her that if she told anyone, he would probably go to jail and
since he did not want to go to jail, he would probably kill himself. A. did not tell her
mother because she believed that her mother would hate her.
                                  3. Post-February 2010 Events
       According to A., her mother became increasingly suspicious of defendant and A.
Her mother threatened defendant when he took A.’s side. She also became angry with A.
during arguments and A. would not know what she had done.
       After the final molestation incident, A.’s parents began having “date nights” with
their neighbors, Michelle and Bill Clawson. According to A., her mother dressed “really
sketchy” on those nights, that is, she wore tall heels, short skirts, and tank tops that
showed too much cleavage.6 Seeing her mother dressed this way upset A., because she

4
       While defendant was performing oral sex on her, Keith entered the bedroom.
After that, defendant locked the door.
5
       According to Ms. George, when she returned from her trip, A. and defendant were
skateboarding while Madison was watching the other children. Both defendant and A.
“seemed shocked like they were in trouble.”
6
       Ms. Clawson disagreed with A.’s description of her mother’s dress.


                                               5
was jealous. A. also hid in her room, because her mother “was always looking at [her]
like it was a victory” and “she would just mak[e] it clear that he was hers.” At that time,
A. loved defendant like a boyfriend.
       Sometime in the spring of 2010, Boliaris received telephone calls from
Ms. George and defendant describing inappropriate behavior by defendant. After A.
confirmed the behavior, which involved three long kisses, Boliaris made a suspected
child abuse report to Child Protective Services (CPS). The Department of Children and
Family Services received the suspected child abuse report on March 10, 2010. During
the investigation by social worker Joshua Mercier, Ms. George stated her concerns:
defendant focused more on A. than the other children and had difficulty concentrating
when he was around A.; A. showed more affection towards defendant and less towards
her; defendant had told her A. had initiated a kiss on the lips that made him feel
uncomfortable and awkward, but Ms. George later discovered that this had happened on
more than one occasion; and defendant gave A. responsibility for supervising the other
children. Since A. did not disclose any abuse, Mercier concluded that the allegations
were unfounded, instituted a safety plan with the family, and the case was closed on April
19, 2010.
       According to Boliaris, A.’s “extreme behavior” after this disclosure “did not
match” having received three long kisses from her father. “[I]t was like watching a girl
break up with her boyfriend.”
       Sometime in mid-April 2010, defendant moved out of the family home for a
couple of weeks and moved in with the Clawsons based on the recommendation of CPS.
According to Ms. George, A. “was out of control, throwing stuff, slamming doors,
swearing” during this period. A. also tried to stab herself with a knife, jump out of the
car while Ms. George was driving, and hang herself with a scarf in the closet. One night
Ms. George called Ms. Clawson, told her that A. was very upset, and asked her to come

                                             6
over. When she arrived, she learned that A. was upset because she thought defendant and
her mother had been having intercourse.
      While defendant was out of the home, Ms. George found two notes in A.’s
bedroom that had been written by A. One note read: “Dad, do you really want to stop
what we are doing because it seems like it. P.S. I thought we had something special.
Don’t show mom.” The other stated: “Dad, if it’s over, tell me A.S.A.P. I love you very
much. Love, your lover, A[].” A. told her mother that she did not give him these notes,
but gave him others.
      At some point, A. told Ms. Clawson that she and defendant had engaged in long
embraces. She also stated that defendant touched her breasts and digitally penetrated her
vagina.
      On May 18, 2010, Ms. George told Boliaris that defendant had admitted that he
sexually abused A. Boliaris met with A., who told her that defendant “touched her skin-
to-skin on her vagina and that he also touched her on her breasts skin-to-skin and fondled
her” in February and March 2010. Boliaris made a second suspected child abuse report,
which was dated May 20, 2010.
      On May 19, 2010, Mercier received telephone calls from defendant and
Ms. George. Mercier first spoke to defendant, who stated that he had just told his wife
that he was having an affair with A. When Mercier asked defendant what he meant by an
affair, defendant stated that he had kissed and hugged her. Defendant also told Mercier
that he and A. were in the garage around February 1, 2010, when he placed his hands on
her breasts and touched her vagina under her clothing. Defendant stated that “he was
feeling vulnerable. He had stopped smoking marijuana. And he stated that those were
the reasons why he felt like he had allowed that to happen.” He also stated that “he could
not keep the secret anymore, that it was killing him.” Mercier told defendant that he
would call him back after speaking to Ms. George.

                                            7
         Mercier called Ms. George, who asked him to come to the home. When Mercier
arrived, he found that Ms. George was very upset. She felt that defendant was at risk of
committing suicide. She called defendant, who was barely speaking and threatening to
kill himself. Mercier contacted the police. A doctor called defendant and guided him to
the hospital.
         On May 19, 2010, Ms. George told police that earlier that day defendant had
admitted that he previously put his hands down A.’s pants and fondled her in the garage.
         On May 20, 2010, A. told the child assault response team (CART) interviewer that
defendant had touched her twice over her clothing and asked if he could touch her
breasts. A. acknowledged that she did not report everything that had happened during
this interview, because she was scared that she would be called a slut or a whore.
         On June 25, 2010, A. told Boliaris that while her mother was gone on an overnight
trip, defendant backed her into the parents’ bedroom, undressed her, fondled her body
skin-to skin, kissed her, urged her to fondle his penis, digitally penetrated her, orally
copulated her, and partially vaginally penetrated her. Defendant also “directed her to
manually masturbate him into his bathroom sink.”
         On July 1, 2010, A. had a second CART interview. At this interview, A. stated
that defendant asked her to come to his bedroom with him, took off her clothes, kissed
her, put his finger into her vagina, and touched her breasts. He also asked her to rub his
penis.


                                         B. Defense Case
                                         1. A.’s Siblings
         Keith testified that he did not get along with his sister, A., though he loved her.
He recalled watching a Percy Jackson movie with defendant, A., and Madison. However,



                                                8
he did not see defendant and A. together in the bedroom. Defendant’s door was never
locked. He did not recall a time when everyone but defendant and A. went to a movie.
       Madison testified that she shared a room with A. According to Madison, A. had
behavioral problems, such as arguing and yelling. A. also acted out by trying to jump out
of a moving car, kill herself using Madison’s scarf, and stab herself with a knife. A.
“always” wanted to be the center of attention. Madison remembered watching the Percy
Jackson movie with defendant, Ben, Keith, and A. She never saw A. go to defendant’s
bedroom. Madison saw this movie at a theater and then at home on DVD. A. also went
to see the Percy Jackson movie at the theater. There was never a time when her mother
took the family to a theater and defendant and A. stayed home.
                                    2. CART Interviews
       Heather Belton, an investigator with the district attorney’s office, conducted two
CART interviews with A. in May and July as well as on September 7, 2012 to prepare for
trial. A. told Belton that she saw the Percy Jackson movie with Keith and Madison when
her mother was out of town. After the movie, Madison went to bed, A. pretended to
sleep on the couch, and Keith was on the computer. Defendant distracted Keith while A.
went into her parents’ bedroom. Defendant entered the bedroom, closed the door,
removed A.’s clothes, and kissed her. Defendant was orally copulating A. when Keith
entered the bedroom. A. did not move so that Keith would not see her. After Keith left,
defendant locked the door.
       A. also told Belton that defendant told her that he “was attempting to find her G-
spot” and that she “was tight.” Defendant did not have a condom but he attempted to
have intercourse. They took a shower together and he asked her to orally copulate him.
A. complied, because her mother frequently told her to obey her elders. A. became dizzy
and defendant ejaculated into the bathroom sink.



                                             9
                                 3. Defendant’s Testimony
       Defendant testified that when A. was adopted, she missed her aunt, who had cared
for her. A. eventually “settled in,” but the interaction between Ms. George and A.
became increasingly difficult. When A. was 10 years old, defendant arranged for his
wife and A. to participate in therapy with Boliaris. A. saw Boliaris either bi-weekly or
monthly from 2008 to 2010. When A. was 11 years old, her psychiatrist prescribed anti-
depressants. A. would sometimes be well-adjusted, and then she began “bullying her
siblings or arguing or doing something to cause a disturbance.” At the suggestion of
Boliaris, defendant and his wife emptied their bedroom walk-in closet so that A. could
have time-outs there. However, A.’s symptoms did not improve.
       In the early part of 2010, the maternal grandmother, the maternal
great-grandparents, and the paternal grandmother were ill. Defendant went on family
medical leave from January 1 to March 6, 2010.
       In the second week that defendant was on leave, the children were fighting and he
had a headache. He was lying on his bed when A. entered the room, grabbed his hand,
and started squeezing between his fingers. He tried to pull his hand back and she told
him that she was pressure-pointing his hand to relieve his headache. She then stroked his
forehead.
       In late January or early February 2010, A. kissed him on the lips. Defendant told
her that he did not like her kissing him on the lips. However, it happened again about a
week later.
       In the second week in February 2010, A. walked into the garage and announced to
defendant and Madison that she had made lunch. After Madison left, A. said, “Hey, Dad,
you look really sad, you look like you need a hug.” They put their arms around each
other, and A. started to kiss him. When defendant started to push her away, she grabbed
his hand and placed it on her chest. After he yanked his hand back, she brought it

                                            10
towards her waist. Defendant pulled his hand back again and said, “What are you doing?
This is crazy.” In response, A. grabbed his crotch and said, “You don’t understand, Dad,
this is just what I want.” When Madison walked in, A. walked away. His wife was not at
home during this incident. Defendant gave this description of the incident to both
Mercier and his wife.
       About two weeks after the incident in the garage, defendant was lying in bed late
at night or early in the morning when he heard his bedroom door close. He thought his
wife had returned from her trip to Capitola. He next realized that someone was lying on
top of him, which was not something that his wife would do. When he made a noise, A.
said, “Don’t worry, Dad, it’s me, A[.]” Defendant was in shock and told her to get out of
the room. Defendant grabbed her by the wrists and slid her to the floor. A. took what he
assumed were her clothes and left. Defendant felt dizzy and disgusted, and vomited in
the bathroom sink and the garbage can.
       When his wife returned from Capitola, defendant and A. were skateboarding and
he knew that she would be upset that Madison was watching the younger children. He
knew that it was not a good idea to have Madison watch the children, because she was
not the most responsible child at the time.
       Defendant kept telling A. that the relationship that she wanted was not possible
because he was her father. She replied, “No, you’re not my father, you’re just the person
that adopted me and my siblings.” According to defendant, he never encouraged A. to
have a relationship with him other than an appropriate father/daughter relationship.
       Sometime in January 2010, defendant learned from A. that she had accessed
pornography on the upstairs computer. A. was concerned that her mother would find out
and become abusive. Defendant admonished A. and agreed not to tell his wife. This was
the only incident in which he and A. made a pinkie swear.



                                              11
         Defendant did not immediately tell his wife about A.’s behavior, because he felt
“trapped,” “embarrassed,” and “ashamed.” He feared that once his wife heard about A.’s
behavior, she would force A. to leave the house and go into a group home. When he told
his wife about the incident in which A. placed his hand on her breast, she hung up on
him.
         In early March, an “inappropriate kissing referral” was made to CPS. He worked
with Mercier and CPS to develop a safety plan and he complied with the plan. In mid-
March, his wife became upset and moved to a hotel with the children. Defendant told her
that he preferred that they return to the house, which they did, and he moved out of the
house.
         After defendant had meetings with his wife, CPS, and Boliaris, he returned to the
family home in early April. However, he was asked to leave the house in late April.
Defendant moved to a trailer park for a couple of weeks. In early May, after receiving
the approval of CPS, he moved in with the Clawsons.
         When he spoke with Mercier on May 19, 2010, defendant was sitting in his truck
at a job site. He was particularly depressed, because he was losing his job and housing.
He tried to kill himself by opening a canister of carbon dioxide in his truck and closing
the windows. After the call from Mercier, defendant received a call from his wife. She
was crying and he was having trouble breathing, deeply depressed, and not
communicating. He remembered a doctor giving him directions to a hospital.
         Defendant denied that he attempted sexual intercourse with A., inappropriately
touched her, inappropriately kissed her, made inappropriate comments to her, and
introduced her to pornography,
         A. continued to pursue defendant even after the trial court had issued a protective
order. In June 2010, A. called him when he was released from jail. In October 2012,
defendant was working at a booth with some other adults at the county fair. A. came by

                                              12
the booth, and once she saw defendant, she would not leave the area. A few adults asked
her to leave, but she kept returning to his booth.
        A. last spoke to defendant three years ago. She said, “You’ve left me and I hate
you.”


                               C. Prosecution Rebuttal Case
        A. denied taking defendant’s hand and putting it on her body during the incident in
the garage. She attended the county fair in October 2012. When she saw defendant, she
“started freaking out” and told her friend that they needed to leave. They left. She did
not make any attempt to contact him.


                                D. Defense Surrebuttal Case
        In October 2012, William Schwartz was working with defendant at the booth at
the county fair. A. came with some friends to the booth and circled around the booth for
about 20 minutes. One of the adults told A. that she needed to leave because defendant
was there. She “made another trip around the booth and presented herself in a way that
made [defendant] very uncomfortable.”


                                       III.   Discussion
        Defendant contends that the judgment must be reversed, because the trial court
failed to give a unanimity instruction (CALCRIM No. 3501).7

7
       CALCRIM No. 3501 states: “The defendant is charged with <insert description[s]
of alleged offense[s]> [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
                                                                              (Continued)
                                              13
       “In a criminal case, a jury verdict must be unanimous. [Citations.] . . .
Additionally, the jury must agree unanimously the defendant is guilty of a specific crime.
[Citation.] Therefore, cases have long held that when the evidence suggests more than
one discrete crime, either the prosecution must elect among the crimes or the court must
require the jury to agree on the same criminal act.” (People v. Russo (2001) 25 Cal.4th
1124, 1132.) “If the prosecution is to communicate an election to the jury, its statement
must be made with as much clarity and directness as would a judge in giving instruction.
The record must show that by virtue of the prosecutor’s statement, the jurors were
informed of their duty to render a unanimous decision as to a particular unlawful act.”
(People v. Melhado (1998) 60 Cal.App.4th 1529, 1539 (Melhado).) We independently
review whether the trial court’s failure to give a unanimity instruction was error. (People
v. Hernandez (2013) 217 Cal.App.4th 559, 568.)
       Here, defendant was charged in counts 1 through 4 with lewd acts upon a child
under 14. The complaint charged that defendant committed: count 1 “[o]n or about
February 1, 2010”; count 2 “[o]n or about February 8, 2010”; count 3 “[o]n or about
February 15, 2010”; and count 4 “[o]n or about February 20, 2010.” It was also alleged
that defendant engaged in substantial sexual conduct with the victim in connection with
count 4. Defendant was charged in count 5 with forcible rape, in count 6 with sexual
penetration by foreign object, in count 7 with aggravated sexual assault of a child (rape),
and in count 8 with aggravated sexual assault of a child (sexual penetration). Counts 5
through 8 were alleged to have occurred “[o]n or about February 20, 2010.”
       In closing argument to the jury, the prosecutor stated: “Now, with regard to
Counts 1, 2, 3 and 4, you heard the testimony initially about the couch incident. That


[¶] 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].”


                                             14
happened in the morning when A. was making noise upstairs and her father brought her
down to the couch shortly before he left for work. You heard testimony that he at that
point touched her on her breast. Touched her on her vaginal area. It started out by
cuddling. [¶] Count 2, another count of lewd and lascivious conduct. Her testimony
about the garage. Now Mr. George claims that A. put his hand on her. She denied
that. . . . [¶] . . . You also heard testimony about an open-mouthed kiss like a boyfriend
or girlfriend would kiss each other.”
       The prosecutor stated: “[O]n the Count 3, we’ll address the Percy Jackson
incident. Now, in that incident A. testified that her mom took the other kids to the movie
. . . . A. talked about an act of vaginal penetration and . . . Mr. George having her put her
hands on him so that he can ejaculate into a sink.” Regarding count 4, the prosecutor
made no election. She argued that count 4 occurred on the same evening as counts 5, 6,
7, and 8, that is, February 20, 2010 when Ms. George stayed overnight in Capitola.
       The trial court did not give a unanimity instruction, and none was requested.
       As the Attorney General concedes, the prosecutor was unsuccessful in
communicating which specific act she was relying on to prove each charge to the jury.
During deliberations, the jury sent a note which read: “Could we receive some
clarification about the ‘counts’ we are deciding on? Do we need to know a specific
incident relating to a ‘count?’ ” In court, the foreperson stated: “We don’t understand
what Count 1 is, what Count 2 is, what Count 3 is. That’s what we’re having difficulty
trying to figure out exactly what i[t] i[s].” After the trial court explained that count 1
concerned a violation of section 288, subdivision (a), the foreperson responded, “I
understand. Let me rephrase my question. Does Count 1 refer to what happened in the
bedroom? Does it refer to what happened in the garage? Does it refer to what happened
when she was out in Santa Cruz or whatever? That’s what we’re trying to figure out.”
The trial court stated, “It’s not specified and it’s not specified on the Complaint either.

                                              15
So the Complaint won’t help you. Okay. I think I see your question now. There are four
separate incidences. They have dates but those dates are approximate, as I mentioned.
You have the instruction on that.”8 The trial court offered to provide the jury with a copy
of the complaint, which would specify the dates. The foreperson responded, “I think that
would help us.” There was no objection and the complaint was given to the jury.
       The jury convicted defendant of counts 1 and 4, found the substantial sexual
conduct allegation for count 4 to be true, and acquitted him of counts 2, 3, 5, and 7. The
jury did not reach a verdict for counts 6 and 8. After defendant brought a motion for new
trial, the court concluded that it did not have a sua sponte duty to give the unanimity
instruction as to counts 1 and 4. However, it found error regarding the substantial sexual
conduct finding.
       Here, as the Attorney General concedes, A. testified that there were more than four
separate incidents of lewd conduct. Thus, the trial court had a sua sponte duty to give the
unanimity instruction after the jury expressed confusion as to which act applied to each
count. (Melhado, supra, 60 Cal.App.4th at p. 1534.) The Attorney General argues that
the error was harmless under Chapman v. California (1967) 386 U.S. 18 (Chapman).
       There is a split of authority on whether the state law harmless error standard
articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson) or the federal
constitutional error standard articulated in Chapman, supra, 386 U.S. 18 applies to the
failure to instruct on unanimity. (See People v. Milosavljevic (2010) 183 Cal.App.4th
640, 647 (Milosavljevic).) “ ‘Under the Watson standard, prejudicial error is shown where
“ ‘ “after an examination of the entire cause, including the evidence,” [the reviewing


8
        The trial court had instructed the jury: “It is alleged that these crimes occurred
February 1, 2010, February 8, 2010, February 15, 2010, and February 20, 2010. The
People are not required to prove that the crimes took place exactly on those days but only
that they happened reasonably close to those days.”


                                             16
court] is of the “opinion” that it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.’ [Citation.]” ’ ”
(People v. Wilkins (2013) 56 Cal.4th 333, 351.) Under Chapman, reversal is required
unless the error was harmless beyond a reasonable doubt. (Milosavljevic, at p. 647.)
       Here, under either standard, we find the error was prejudicial. Based on A.’s
testimony, some jurors could have concluded that count 1 was the first incident and count
4 was the fourth incident, while others could have concluded that defendant was guilty of
the acts about which he made admissions. Still other jurors could have found that count 4
referred to the final incident. Jurors could also have concluded that defendant committed
the acts occurring close to the dates “[o]n or about” February 1, and 20, 2010, as alleged
in counts 1 and 4.
       The Attorney General argues, however, that count 1 charged the earliest or first
lewd act while count 4 charged the last incident, which the evidence showed occurred on
February 20, 2010. There is nothing in the record to indicate that the jury took this
approach. Even if we assume that the jurors used the approach advocated by the
Attorney General and concluded that count 1 applied to the first incident, it is not clear
when the first incident was. A. testified that the first incident occurred on the couch on
February 14, 2010, but she also testified that this incident occurred sometime after
February 14, 2010. Some jurors could have concluded that count 1 corresponded to the
couch incident. But others could have concluded that count 3 corresponded to the couch
incident, which was closer to being “on or about” February 15. These jurors could have
found defendant guilty of count 1 based on his admission to Mercier that the first lewd
act occurred “around February 1, 2010” in the garage when he placed his hands on her
breasts and touched her vagina under her clothing. Moreover, A. also testified that she
and defendant were exchanging inappropriate kisses in defendant’s bedroom on
February 14, 2010. Thus, some jurors could have concluded that this was the first

                                             17
incident of lewd conduct and corresponded to count 1, because they believed that the
couch incident occurred sometime after February 14, 2010.
       As to count 4, the complaint alleged that it occurred on or about
February 20, 2010. Counts 5 through 8 alleged the same approximate date. The Attorney
General points out that A. testified that the last incident of inappropriate behavior
occurred when her mother took an overnight trip to Capitola, and Ms. George testified
that she was away on the evening of February 20, 2010. Thus, the Attorney General
argues that the jury would have focused on what occurred on February 20, 2010, to
determine whether defendant was guilty of counts 4 through 8. However, the jury found
defendant not guilty of counts 5 and 7 and did not reach a verdict on counts 6 and 8.
Some jurors could have concluded that defendant was guilty of lewd conduct and not the
other acts alleged by A. on that evening. But other jurors could have focused on the
fourth incident, concluded that count 4 corresponded to the incident in her bedroom when
the other family members were at the Percy Jackson movie, and convicted defendant
based on those acts.
       In sum, given that the jury did not believe all of A.’s testimony and the conflicting
testimony on the dates of the incidents, it is reasonably probable that a different result
would have been reached if the jury had been given a unanimity instruction (Watson,
supra, 46 Cal.2d at p. 836), and the trial court’s failure to give a unanimity instruction
was not harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)9



9
      Defendant also challenges the constitutionality of former CALCRIM No. 1110.
He contends that the language in this instruction which stated that “the touching need not
be done in a lewd or sexual manner” negated the requirement of finding that he
committed the act with lewd intent. In the event that this case is retried, we need not
consider this issue, because that language has been removed from the current version of
CALCRIM No. 1110.


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                            IV. Disposition
The judgment is reversed.




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                                   _______________________________
                                   Mihara, J.



WE CONCUR:




______________________________
Bamattre-Manoukian, Acting P. J.




______________________________
Márquez, J.




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