Filed 6/24/14 P. v. Gonzalez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048200

         v.                                                            (Super. Ct. No. 11CF1732)

SAMUEL GONZALEZ,                                                       OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed.
                   Patricia M. Ihara, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
              Samuel Gonzalez appeals from a judgment after a jury convicted him of
multiple sexual offenses. Gonzalez argues insufficient evidence supports the jury’s
findings of substantial sexual conduct and the trial court erred in instructing the jury.
None of his contentions have merit, and we affirm the judgment.
                                           FACTS
              Gonzalez and his wife have four daughters, D.G., E.G., Y.G., and S.G., and
one son, J.G. Gonzalez, his wife, D.G., and E.G. emigrated from Mexico. J.G. and Y.G.
remained in Mexico with their grandparents and moved to the United States later. S.G.
was born in the United States.
              Gonzalez began molesting seven or eight-year-old E.G. in 1991 at night
when they slept in the same bed together. The first time Gonzalez touched her he put his
hand underneath her clothes and touched her breasts and rubbed her vagina. Gonzalez
touched her on two additional occasions. E.G. would try to wake up her sister who slept
next to her to get Gonzalez to stop.
              Eight-year-old Y.G. moved to the United States in about 1993 and lived
with her parents. Gonzalez began molesting Y.G. upon her arrival. The first time, Y.G.
was laying on her parents’ bed watching television with Gonzalez. He first touched her
leg and then her vagina. She tried to move his hand away, but he forced her down, pulled
up her shirt, and kissed her breasts and chest. Gonzalez removed his pants, pulled Y.G.’s
underwear down, put his penis in her vagina, and had sexual intercourse with her. Y.G.
was bleeding and in pain. Gonzalez ejaculated onto the bed. Gonzalez continued raping
Y.G. for the first few years about once a month and after that almost daily. Gonzalez
began ejaculating inside Y.G. and forced her to orally copulate him.
              Y.G. became pregnant when she was 13 years old. At some point,
Gonzalez took Y.G. to a clinic where she learned she was pregnant. Gonzalez wanted her
to have an abortion, but by the time he obtained the money, she was too far along in her
pregnancy. They left the clinic, and Gonzalez took Y.G. to a bike trail, where he choked

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her. She did not resist because she wanted to die. Gonzalez stopped choking her, and he
drove them home, where he called a family meeting and told his wife and children that he
had had been having sex with Y.G. and got her pregnant. Three weeks after 14-year-old
Y.G. had her baby via cesarean section, Gonzalez raped Y.G. again and she was in
enormous pain.
               Y.G.’s parents told her to tell anyone who asked that a man in Mexico got
her pregnant. At some point in 1999, Y.G. told a teacher what her father had done to her.
Social services first interviewed Gonzalez and his wife, and then Y.G. Y.G. denied
everything because she knew social services had already spoken to her parents.
               Gonzalez molested 19-year-old S.G. in 2011. S.G. was sleeping when she
awoke to Gonzalez touching her breasts under her clothes. S.G. left the house, drove
around all night, and returned the next day. She reported the incident to the police two
weeks later.
               Y.G. reported what Gonzalez had done to her shortly thereafter. She
provided DNA samples from her and her daughter. A paternity test confirmed Gonzalez
is the father of Y.G.’s daughter.
               Santa Ana detectives interviewed Gonzalez after advising him of his rights
pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Gonzalez admitted he is the father
of his granddaughter. He stated that when Y.G. was about nine years old, they would fall
asleep together, and she would “grab [his] parts.” He claimed Y.G. stimulated herself
with his hand, and she wanted him to penetrate her but he refused because his wife would
find out. He also said that when Y.G. was about 11 years old, she would take off her
clothes and rub her vagina on Gonzalez’s penis and he would masturbate. Gonzalez
admitted they had sexual intercourse daily when Y.G. was about 13 or 14 years old for
about six months. He admitted they engaged in oral copulation. He stopped having
sexual intercourse with Y.G. when she became pregnant. He admitted taking her to a



                                             3
clinic to obtain an abortion but denied he tried to kill her. Gonzalez admitted abusing
E.G. stating he was “diabolical.” The following colloquy occurred between
Detective Nunez1 and Gonzalez:
               “[Detective Nunez]: To touch the breast was it skin to skin, or over the
clothes, or the clothes . . .
               “[Gonzalez]: Over the clothing in, in I, I wanted to put in my hand but she
always was honest and, and she never wanted me to touch her firmly.
               “[Detective Gonzalez]: She said that, that there were occasions that you
did touch her vagina.
               “[Gonzalez]: Yes.
               “[Detective Gonzalez]: Okay.
               “[Gonzalez]: But always uh, uh, she took my hand out and I never put
it . . .
               “[Detective Nunez]: But you would put your hand in and would touch her
vagina but she would take your hand out for you?
               “[Gonzalez]: Exactly.
               “[Detective Nunez]: Okay.
               “[Detective Gonzalez]: Okay.
               “[Detective Nunez]: Did she, did she touch, touch you?
               “[Gonzalez]: No.
               “[Detective Nunez]: No.
               “[Detective Gonzalez]: Okay, how many times did that occur with.
               “[Gonzalez]: With [E.G.], not many because I uh.
               “[Detective Gonzalez]: More than five?


1              We have searched the record but are unable to located Detective Nunez’s
first name.


                                              4
              “[Gonzalez]: No, like about two or three times.” (Italics added.)
              Gonzalez told detectives he may have touched S.G.’s breast but if he did he
did not have bad intentions.
              An information charged Gonzalez with the following: Y.G.—forcible rape
(Pen. Code, § 261, subd. (a)(2))2 (count 1), and nine counts of committing a lewd act
upon a child (§ 288, subd. (a)) (counts 2-10); E.G.—two counts of committing a lewd act
upon a child (§ 288, subd. (a)) (counts 11 & 12); and S.G.—misdemeanor sexual battery
(§ 243.4, subd. (e)(1)) (count 13). As to counts 2 through 10, the information alleged
Gonzalez committed the offenses against more than one victim (§ 667.61, subds. (b),
(e)(5)). With respect to all but counts 1 and 13, it alleged he had substantial sexual
conduct with a child (§ 1203.066, subd. (a)(8)), including counts 11 and 12 which alleged
masturbation. Finally, as to count 10, the information alleged he committed the offense
against more than one victim and personally inflicted great bodily injury. (§ 667.61,
subds. (a) & (e).)
              As to counts 1, 2, and 3, the information alleged the statute of limitations
was tolled (§ 803, subds. (f)(1)) because Y.G. was under 18 years of age and the offenses
involved substantial sexual conduct (§ 1203.066, subd. (b)), and alleged corroborating
evidence. With respect to counts 4, 5, 6, 7, 8, 9, and 10, the information alleged the
statute of limitations was tolled because Y.G. was under 18 years of age (§ 801.1,
subds. (a)), and prosecution commenced before she was 28 years of age. Finally, as to
counts 11 and 12, the information alleged the statute of limitations was tolled (§ 803,
subds. (f)(1)), because E.G. was under 18 years of age and the offenses involved
substantial sexual conduct (§ 1203.066, subd. (b)). The prosecution alleged




2             All further statutory references are to the Penal Code, unless otherwise
indicated.


                                             5
corroborating evidence, including Y.G. stated Gonzalez molested her as a child and
Gonzalez admitted touching E.G.’s vagina when she was under 14 years of age.
              At trial, E.G. testified concerning Gonzalez molesting her. When the
prosecutor asked how many times Gonzalez touched her breasts and vagina, she
answered, “at least three times.” The prosecutor asked if he touched her breasts and
vagina on each of the three occasions, E.G. replied he touched her vagina on two of the
occasions. When the prosecutor asked how many times he touched her vagina “for sure,”
she responded, “at least once.” On cross-examination, E.G. agreed when defense counsel
asked whether Gonzalez touched her vagina “at least once.” E.G. testified a detective
told her and Y.G. they could apply for U-Visas, which she understood was a document
that helps crime victims remain in the United States.
              Detective Alan Gonzalez testified he interviewed E.G. on June 29, 2011.
The following colloquy occurred:
              “[Prosecutor]: And there were incidents she described where -- well, let me
withdraw that. She described approximately three incidents; correct?
              “[Detective Gonzalez]: That is correct.
              “[Prosecutor]: Did she say what happened during each of those incidents?
              “[Detective Gonzalez]: Yes.
              “[Prosecutor]: In terms of what she said happened during those incidents,
was each incident essentially the same in terms of the touching involved?
              “[Detective Gonzalez]: Yes.
              “[Prosecutor]: What did she say that the touching involved on each of
those three incidents?
              “[Detective Gonzalez]: She described [Gonzalez] placing his hands under
her clothing and touching her vagina and also touching her breasts.
              “[Prosecutor]: And when she described him touching her vagina, did she
say whether it was over or under the clothing?

                                            6
              “[Detective Gonzalez]: She said it was under the clothing.
              “[Prosecutor]: And she described that for each of the incidents?
              “[Detective Gonzalez]: Yes.”
              On cross-examination, Detective Gonzalez stated E.G. said she did not
remember the complete details of what Gonzalez did to her. On redirect examination, the
prosecutor asked, “But during the interview [E.G.] made it clear there were at least three
occasions -- separate occasions where [Gonzalez] touched both her breasts and her
vagina?” Detective Gonzalez answered, “That is correct.”
              Gonzalez testified on his own behalf. Gonzalez testified his statements to
detectives were false and he and his wife concocted the story in an attempt to get U-Visas
for his family to remain in the United States. On cross-examination, Gonzalez explained
nine-year-old Y.G. was sexually promiscuous and the part about her sexually abusing
him “was the truth.” He said S.G. was not part of the plan because she was a
United States citizen.
              As relevant to the issues on appeal, the trial court instructed the jury on the
statute of limitations, the enhancements, and unanimity. Defense counsel objected to the
definition of masturbation contained in two of the instructions.
              The trial court instructed the jury with CALCRIM No. 3410A that if it
found Gonzalez guilty of counts 1, 2, 3, 11, and 12, it had to determine whether the
prosecution provided by clear and convincing evidence among other things the offenses
involved “[s]ubstantial sexual conduct.” The instruction explained the difference
between the burdens of proof. And the instruction defined “masturbation” as follows:
“[A]ny touching of the genitals, however slight. Masturbation can occur when a person’s
genitals are touched from outside the person’s clothes. Contact with bare skin is not
required.”
              The trial court instructed the jury on the substantial sexual conduct
enhancement. As relevant here, CALCRIM No. 3181B provided, “If you find the

                                              7
defendant guilty of any of the crimes charged in [c]ounts 11 and 12, [l]ewd [a]ct on a
[c]hild [u]nder 14, you must then decide, for each of those crimes, whether the People
have proved the additional allegation that those crimes involved substantial sexual
conduct, namely, masturbation. [¶] . . . [¶] Masturbation means any touching of the
genitals, however slight. Masturbation can occur when a person’s genitals are touched
from outside the person’s clothes. Contact with bare skin is not required.”
              Finally, the trial court instructed the jury with CALCRIM No. 3501, the
unanimity instruction, as to counts 2 through 9 involving Y.G. but not counts 11 and 12
concerning E.G.
              The jury convicted Gonzalez of all counts and found true all the
enhancements. The trial court sentenced Gonzalez to a total indeterminate term of
145 years to life (counts 2 through 9-15 years to life on each and count 10-25 years to
life), plus a determinate term of 12 years (count 1-eight years, count 11-two years, count
12-two years).
                                       DISCUSSION
              Gonzales argues insufficient evidence supports the jury’s finding of
substantial sexual conduct, the trial court erred in instructing the jury on “masturbation,”
and the court erred in failing to instruct the jury sua sponte on unanimity. All Gonzalez’s
claims concern E.G. and counts 11 and 12. We will address each of his claims in turn.
I. Sufficiency of the Evidence
              Gonzalez contends insufficient evidence supports the jury’s finding he had
substantial sexual conduct with E.G. He relies on the fact that to toll the statute of
limitations on counts 11 and 12, the prosecution had to establish by clear and convincing




                                              8
evidence3 those counts involved substantial sexual conduct, i.e., masturbation. Gonzalez
cites to E.G.’s testimony he touched her “at least once” to support his claim he only
masturbated her once. As we explain below, there was other evidence the jury could
reasonably rely on to conclude Gonzalez masturbated E.G. twice.
              “‘“In reviewing the sufficiency of evidence under the due process clause of
the Fourteenth Amendment to the United States Constitution, the question we ask is
‘whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” [Citation.] We apply an identical standard under the California
Constitution. [Citation.] “In determining whether a reasonable trier of fact could have
found defendant guilty beyond a reasonable doubt, the appellate court ‘must view the
evidence in a light most favorable to respondent and presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the evidence.’”
[Citation.] The same standard also applies in cases in which the prosecution relies
primarily on circumstantial evidence. [Citation.]’ [Citation.] [¶] We therefore review
the record in the light most favorable to the prosecution to determine whether the
challenged convictions are supported by substantial evidence, meaning ‘evidence which
is reasonable, credible, and of solid value.’ [Citation.] In contrast, ‘mere speculation
cannot support a conviction. [Citations.]’ [Citation.] ‘In deciding the sufficiency of the
evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts.
[Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive
province of the trier of fact. [Citation.]’” (People v. Mejia (2007) 155 Cal.App.4th 86,
93.)

3              Although the applicable burden of proof for the statute of limitations is
preponderance of the evidence (People v. Medina (1990) 51 Cal.3d 870, 919), at the
prosecutor’s request, the trial court instructed the jury with the clear and convincing
evidence standard to avoid confusing the jury because the applicable burden of proof to
establish the corroborating facts is clear and convincing evidence.

                                             9
              Section 288, subdivision (a), prohibits any person from “willfully and
lewdly commit[ting] any lewd or lascivious act . . . upon or with the body, or any part or
member thereof, of a child who is under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of that person or the child
. . . .” Section 1203.066, subdivision (a)(8), provides a defendant is ineligible for
probation if a person who violates section 288 “has substantial sexual conduct with a
victim who is under 14 years of age.” Section 1203.066, subdivision (b), states,
“‘Substantial sexual conduct’ means penetration of the vagina or rectum of either the
victim or the offender by the penis of the other or by any foreign object, oral copulation,
or masturbation of either the victim or the offender.” (Italics added.)
              Here, the record includes evidence from which the jury could reasonably
conclude Gonzalez masturbated E.G. twice. E.G. initially said Gonzalez touched her
breasts and vagina “at least three times,” but when examined further concerning whether
he touched her vagina three times she said, “[o]nce he didn’t” because she tried to move
and later “at least once.” But there was other testimony, including Detective Gonzalez’s
testimony and Gonzalez’s statements to detectives to establish by clear and convincing
evidence Gonzalez masturbated E.G. twice. Detective Gonzalez testified E.G. told him
that Gonzalez touched her on three occasions and all three encounters involved the same
type of conduct—Gonzalez putting his hand under E.G.’s clothes and touching her
breasts and vagina. Gonzalez’s claim E.G.’s memory was unreliable in June 2011,
20 years after the event, but reliable at trial because she was under oath and “think[ing]
carefully” is unpersuasive.
              Additionally, when read in context, the jury could reasonably rely on
Gonzalez’s statements to detectives to establish he masturbated E.G. twice. After
Detective Nunez questioned Gonzalez about touching E.G.’s breasts, the questions turned
to whether he touched her vagina. Gonzalez admitted there were “occasions” he touched
E.G.’s vagina. Detective Nunez transitioned and asked whether E.G. touched Gonzalez,

                                              10
but Detective Gonzalez quickly returned to Gonzalez touching E.G. It is true he did not
specifically ask how many times Gonzalez touched E.G.’s vagina, but in context the jury
could reasonably conclude Gonzalez admitted touching E.G.’s vagina at least twice when
Gonzalez responded, “about two or three times” based on the context of their
conversation.
                Gonzalez relies on People v. Moore (1989) 211 Cal.App.3d 1400, to
support his claim E.G.’s testimony was an “approximation” constituting speculation. In
Moore, the prosecutor asked the victim “‘[a]bout how many times’” defendant
sodomized her. (Id. at p. 1409.) The victim replied three times. Defendant focused on
the form of the prosecutor’s question and argued the victim’s testimony was speculative.
The Moore court rejected that argument, explaining “the form of the prosecutor’s
question is regrettable” but the victim did not answer with an approximation and there
was sufficient evidence defendant committed three separate acts. (Ibid.)
                As we explain above, E.G.’s testimony was not the sole evidence on this
point. Detective Gonzalez and Gonzalez himself provided additional evidence from
which the jury could reasonably conclude based on clear and convincing evidence
Gonzalez masturbated E.G. twice. To be sure, based on the entire record, we conclude
sufficient evidence supports the conclusion Gonzalez masturbated E.G. twice under the
higher beyond a reasonable doubt standard.
II. Jury Instructions
A. Masturbation
                Gonzalez contends the definition of masturbation was overbroad and
incorrect and we must reverse his convictions on counts 11 and 12, because the statute of
limitations was not tolled, and the jury’s findings on the multiple victim allegations as to
counts 2 through 10 because he did not engage in substantial sexual conduct. Not so.
                In People v. Chambless (1999) 74 Cal.App.4th 773, 776 (Chambless),
Division One of this district addressed the substantial sexual conduct requirement under

                                             11
the Sexually Violent Predators Act (SVPA) in effect at that time. The court explained the
Legislature took the definition of substantial sexual conduct under the SVPA (see former
Welf. & Inst. Code, § 6600.1, subd. (b)), directly from section 1203.066, subdivision (b),
and held the definition of masturbation under the SVPA “encompasses any touching or
contact, however slight, of the genitals of either the victim or the offender, with the
requisite intent.” (Chambless, supra, 74 Cal.App.4th at pp. 783, 786.) The Chambless
court stated masturbation is not an offense codified in the Penal Code, but that the word
appeared to have been used in the SVPA “simply in its commonly understood meaning to
describe the touching of one’s own or another’s private parts without quantitative
requirement for purposes of defining conduct that was lewd or sexually motivated.”
(Id. at p. 784, fn. omitted.) The Chambless court relied, in part, on People v. Grim (1992)
9 Cal.App.4th 1240 (Grim), in which the court considered the appropriateness of jury
instructions concerning the sufficiency of the evidence to find substantial sexual conduct
based on oral copulation as defined in section 1203.066. (Grim, supra, 9 Cal.App.4th at
pp. 1241-1243.) The Grim court held the instructions telling the jury that “‘[a]ny contact,
however slight, between the mouth of one person and the sexual organ of another person
constitutes “oral copulation”’” and that penetration of the mouth was not required for
finding oral copulation sufficient to constitute substantial sexual conduct under section
1203.066. (Grim, supra, 9 Cal.App.4th at p. 1242.) The Chambless court reasoned that
because section 1203.066 provided masturbation as well as oral copulation can mean
substantial sexual conduct, just as the SVPA then “the Legislature intended the extent of
touching of the genitals required to meet the definition of masturbation would also be the
same as in Grim. Hence, any contact, however slight[,] of the sexual organ of the victim
or the offender would be sufficient to qualify as masturbation and in turn as substantial
sexual conduct . . . .” (Chambless, supra, 74 Cal.App.4th at p. 787.) The court
concluded its construction was consistent with principles of statutory construction and the
SVPA’s purpose of protecting underage children. (Ibid.)

                                             12
              Gonzalez asserts the Chambless court’s definition of masturbation is
overbroad and incorrect and raises the following contentions to support his claim we
should not follow Chambless: Chambless articulated a legal definition of masturbation
different from its common everyday meaning; Chambless’s definition of masturbation is
broader than its common everyday meaning because the standard is “substantial sexual
conduct” not “slight” touching; Chambless improperly compared masturbation to oral
copulation in arriving at its definition; protecting children is not a sufficient justification
for utilizing an overbroad definition; Chambless should not be followed because the
Legislature subsequently amended Welfare and Institutions Code section 6600.1; and
Chambless concerned “a sufficiency of the evidence question, not a jury instruction
definition of the term.”
              First, we note subsequent cases have affirmed the Chambless court’s
definition of “masturbation” in a variety of contexts. (People v. Dunn (2012)
205 Cal.App.4th 1086, 1098, fn. 8 [quoting Chambless definition in denying probation
pursuant to § 1203.066, subds. (a)(8) & (b)]; People v. Carlin (2007) 150 Cal.App.4th
322, 333 [relying on Chambless definition of masturbation in finding prosecution’s
evidence of substantial sexual conduct sufficient under SVPA]; People v. Fulcher (2006)
136 Cal.App.4th 41, 52 [quoting Chambless definition with approval in SVPA case];
People v. Whitney (2005) 129 Cal.App.4th 1287, 1294 [same]; People v. Terry (2005)
127 Cal.App.4th 750, 772 [adopting Chambless definition of masturbation pursuant to
§ 803, subd. (g)]; People v. Lopez (2004) 123 Cal.App.4th 1306, 1311-1315 (Lopez)
[relying on Chambless to hold masturbation does not require direct touching of genitals
but may be done over clothing under SVPA; J. Walsh concurring Chambless “presents a
difficult definitional problem”]; People v. Whitlock (2003) 113 Cal.App.4th 456, 463
[same].)
              We find no compelling reason to depart from Chambless’s well-reasoned
analysis and Gonzalez cites to no alternative definition that has precedential value other

                                               13
than masturbation’s common everyday meaning. But that definition would be of no
assistance to the jury because it contains no quantitative component to the duration of the
stimulation to the genital area. (Lopez, supra, 123 Cal.App.4th at pp. 1313-1314
[dictionary words “‘manipulation’” and “‘excitation’” insufficient for quantitative
element to amount of touching necessary for masturbation]; see, e.g., Webster’s 3d New
Internat. Dict. (1981) p. 1391 [defining masturbation as “erotic stimulation involving the
genital organs commonly resulting in orgasm and achieved by manual or other bodily
contact exclusive of sexual intercourse, by instrumental manipulation, occas. by sexual
fantasies, or by various combinations of these agencies”].) And like Lopez, because the
trial court instructed the jury “the touching had to be done with the ‘requisite specific
intent to arouse, appeal to, or gratify the sexual desires of either party,’ the component of
manipulation or excitation was acknowledged.” (Lopez, supra, 123 Cal.App.4th at
p. 1313.)
              Because we conclude the Chambless court’s thorough reasoning carries the
day, we need not address each of Gonzalez’s criticisms save one. Gonzalez argues
Chambless should not be followed because in 2010 the Legislature subsequently
amended Welfare and Institutions Code section 6600.1, the statute the Chambless court
construed, to exclude misdemeanor offenses. We disagree.
              The courts presume the Legislature is “‘aware of “‘judicial decisions
already in existence, and to have enacted or amended a statute in light thereof.
[Citation.]’” [Citation.]’ [Citation.] Moreover, where the Legislature uses a term well
understood by the common law, we must presume that the Legislature intended the
common law meaning. [Citation.]” (People v. Newby (2008) 167 Cal.App.4th 1341,
1346-1347.) Gonzalez relies on this presumption in making his claim.
              It is true Welfare and Institutions Code section 6600.1 was amended but not
by the Legislature in 2010. Section 6600.1 was amended by proposition in 2006.



                                             14
(Prop. 83, § 25, approved by voters, Gen. Elec. (Nov. 7, 2006) eff. Nov. 8, 2006.) But it
is also true the Legislature has amended, repealed, and reenacted section 803, one of the
statutes at issue here, multiple times since 1999. (See Stats. 2001, ch. 235, § 1;
Stats. 2003, ch. 949, § 1; Stats. 2005, ch. 2, § 3; Stats. 2005, ch. 479, § 3; Stats. 2007,
ch. 579, § 41; Stats. 2011, ch. 15, § 447; Stats. 2011, ch. 211, § 1.5.) Although the
Legislature has amended section 803 multiple times since 1999, the Legislature has not
amended the statute to indicate a disagreement with the Chambless court’s definition of
masturbation. Therefore, we must presume that when the Legislature amended
section 803, it was aware of the definition of masturbation set forth in Chambless. Thus,
the fact the Legislature did not modify the language in the statute to indicate a
disagreement with Chambless indicates an acceptance of the Chambless court’s definition
of masturbation.
B. Unanimity
              Gonzalez argues “the trial court erred when it failed to give a unanimity
instruction on counts 11 and 12 and on the factual finding of masturbation in the statute
of limitations allegations.” (Capitalization omitted.) The Attorney General responds the
court did not err because the conduct underlying counts 11 and 12 were substantially
similar and Gonzalez presented a single defense to all the charges.
              Gonzalez argues the Attorney General “implicitly concedes” the trial court
erred in failing to instruct the jury on unanimity as to counts 11 and 12 but asserts the
error was harmless. To interject quickly, we disagree with that. Gonzalez continues
though, “[Gonzalez] does not dispute that as to the underlying charges of lewd acts in
counts 11 and 12, any error in failing to give the instruction was harmless where E.G.
testified that [Gonzalez] touched her breasts three times.” Gonzalez adds though the
Attorney General failed to address his claim “a unanimity instruction was required for the
factual finding of masturbation, to prove ‘substantial sexual conduct’ occurred, a
necessary component of the statute of limitations allegations.”

                                              15
              In a criminal case, the constitutional right to jury unanimity requires that
when a defendant is charged with a single criminal act and the evidence shows more than
one such act, either the prosecution must select the specific act relied upon to prove the
charge, or the jury must be instructed that it must agree unanimously that defendant
committed the same act. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) A
unanimity instruction is not required where the acts are substantially identical in nature
and the jury, believing one act occurred, must inexorably believe all acts occured.
(People v. Champion (1995) 9 Cal.4th 879, 932, disapproved on another ground in
People v. Ray (1996) 13 Cal.4th 313.) This rule applies to the facts of this case.
              Gonzalez’s defense was he concocted the story he sexually abused his
daughters to enable them to obtain U-Visas to remain in the United States. He testified
his statements to detectives were false, except for the fact his daughter, Y.G., could not
keep her hands off him. Contrary to Gonzalez’s claim otherwise, the evidence
demonstrated Gonzalez’s conduct was substantially identical in nature—Gonzalez
reached under E.G.’s clothes and touched her breasts and vagina at least two times. We
are not convinced the jury could have based its verdicts on different conduct based on
Gonzalez’s and E.G.’s accounts of what happened. The jury was either going to believe
Gonzalez’s defense or it was not, which it didn’t and isn’t surprising considering a
paternity test established he was his granddaughter’s father. (People v. Fernandez (2013)
216 Cal.4th 540, 557-558 [jurors either believed defendant repeatedly molested his
granddaughters or they completely disbelieved granddaughters’ stories].) Thus, the court
did not err in failing to instruct the jury sua sponte on unanimity as to counts 11 and 12.
              As to Gonzalez’s second claim, he cites to People v. Gibson (1991)
229 Cal.App.3d 284, 287, to argue the unanimity doctrine applies to sentencing
enhancements as well as underlying offenses. The statute of limitations is not an element
of a crime to the extent the definition of criminal conduct is concerned (People v. Frazer
(1999) 21 Cal.4th 737, 757-760, overruled on other grounds in Stogner v. California

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(2003) 539 U.S. 607, 609-610), nor is it a sentencing enhancement. In dicta, the Supreme
Court has indicated that in the conspiracy context, there may be a case where the trial
court may have to instruct the jury an overt act was committed within the applicable
statute of limitations period. (Russo, supra, 25 Cal.4th at p. 1136, fn. 2.)
              Assuming a trial court may be required to instruct the jury on unanimity
when there are multiple acts alleged to toll the applicable statute of limitations, Gonzalez
does not argue the analysis would be any different than that discussed above. Indeed, he
asserts the conduct was not “substantially identical” and “[t]he jury was not presented
with an ‘all-or-nothing choice.’” These are the same concepts a court must consider
when determining whether to instruct a jury on unanimity when there are multiple acts
underlying an offense. Gonzalez offers no compelling justification why the analysis
would be any different. As there was no error, we need not address prejudice. Thus, the
trial court did not err in failing to instruct the jury on unanimity as to Gonzalez’s guilt on
counts 11 and 12 or to toll the statute of limitations as to those counts.
                                       DISPOSITION
              The judgment is affirmed.




                                                   O’LEARY, P. J.

WE CONCUR:



RYLAARSDAM, J.



MOORE, J.




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