Filed 11/9/15 P. v. Linares CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B257600

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA415801)
         v.

MARVIN LINARES,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Laura F.
Priver, Judge. Affirmed.
         Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee and Nathan
Guttman, Deputy Attorneys General, for Plaintiff and Respondent.
                                                   _____________
       Marvin Linares was convicted by a jury on multiple counts of lewd conduct with a
child under 14 years old, one count of sexual intercourse or sodomy with a child 10 years
old or younger and one count of continuous sexual abuse of a child under 14 years old.
On appeal Linares contends ambiguous jury instructions improperly permitted the jury to
convict him of continuous sexual abuse based on the same conduct at issue in other
counts. He also contends the court erred in failing to give a unanimity instruction in
connection with the sexual intercourse count. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. The Amended Information
       Linares was charged in an amended information with two counts of committing a
lewd act on his daughter Emily, a child under 14 years old, on or between November 5,
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2009 and November 4, 2011 (Pen. Code, § 288, subd. (a)) (counts 1 & 2); one count of
sexual intercourse or sodomy on a child 10 years old or younger on or between
November 5, 2009 and November 4, 2011 (§ 288.7, subd. (a))(count 3); one count of
continuous sexual abuse of a child under 14 years old during the period November 5,
2011 through July 14, 2013 (§ 288.5, subd. (a)) (count 4); and two counts of committing
a lewd act on A.F., a child under 14 years old, on or between October 5, 2000 and
                                                    2
October 4, 2001 (§ 288, subd. (a)) (counts 6 & 7). As to the lewd act counts it was
specially alleged that Linares had committed a sexual offense against more than one
victim within the meaning of section 667.61, subdivisions (b), (c) and (e). As to the
counts involving A.F. it was specially alleged that A.F. was under 18 years old at the time
of the offense and the prosecution was commenced prior to her 28th birthday (former
                                                        3
§ 801.1, subd. (a), Stats. 2007, ch. 579, § 40, p. 4845.) Linares pleaded not guilty and
denied the special allegations.


1      Statutory references are to this code.
2      The amended information did not include a count 5.
3     Former section 801.1, subdivision (a), authorized the commencement of a
prosecution for certain enumerated sex crimes with a child victim at any time prior to the

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       2. The Trial
       Emily was born in November 2001. Emily testified Linares began sexually
molesting her when she was eight or nine years old. At first he removed her clothing
from the waist down and touched her bare genitals with his hands. His behavior soon
escalated; and, more than once when Emily was eight or nine years old, Linares inserted
his penis “inside her.” Emily specifically recalled one occasion when she fell asleep on a
pile of blankets in her grandmother’s room and awoke to find Linares on top of her
moving his penis “in and out of [her] vagina.” She was scared and did not tell anyone
about the abuse.
       When Emily was nine years old, Linares left the family home for several months,
returning when Emily was 10 years old. By the time he returned, Emily had entered
puberty. Linares resumed his molestation of Emily: He put his hand under her shirt to
touch her breasts and also placed his mouth on her genitals on more than one occasion.
Emily also testified that, beginning when she was 10 years old, he “touch[ed] her body”
with his penis like he “used to when I was eight.” Emily felt very uncomfortable but was
afraid to report the abuse. Emily finally told her aunt Nancy and then her mother.
Emily’s mother reported the abuse to the police, and she and her children moved out of
the family home.
       A.F., one of Emily’s maternal aunts, was born in October 1993. When A.F. was in
first grade, Linares assisted the family by picking up A.F. from school. On more than
one occasion Linares drove with A.F. to an alley, placed her on his lap in the backseat,
pushed aside her skirt, pulled down her underpants and touched her vagina with his
fingers. A.F. also described an assault that occurred when she was in the first grade and
alone with Linares at home. After ordering her to remove her clothing and lie down on a
bed, Linares put hair wax on his fingers and touched her vagina. A.F. initially did not tell



victim’s 28th birthday. (Stats. 2007, ch. 579, § 40, p. 4845.) Effective January 1, 2015,
section 801.1 was amended to expand that limitation period to any time prior to the
victim’s 40th birthday. (See Stats. 2014, ch. 921, § 1.)

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anyone about the abuse because she feared she might get in trouble and believed she was
somehow to blame. A.F. moved to Oregon a short time later with her family and
returned to Los Angeles when she was in the 11th grade. When A.F. learned Linares had
abused Emily, she revealed to her family that Linares had also sexually abused her.
       During an interview with Los Angeles Police Detective Blanca Pasos, Linares
asked, “Can someone be blamed for something when they don’t remember doing it or
when they were incoherent when they did it or they were doing it? How can you find me
guilty if I don’t remember doing it?” Linares testified in his own defense at trial and
denied asking Detective Pasos this question. He also denied any sexual misconduct
toward Emily or A.F. He believed Emily was retaliating against him because he had
taken away her cell phone for a month. He was surprised A.F. was accusing him of
sexual misconduct and insisted both she and Emily were lying.
       3. The Verdict and Sentence
       The jury convicted Linares on all counts and found the special allegations true.
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Linares was sentenced to an aggregate indeterminate state prison term of 55 years to life.
                                        DISCUSSION
       1. There Is No Reasonable Likelihood the Jury Believed It Could Convict Linares
          of Continuous Sexual Abuse Based on the Same Acts That Were the Subject of
          Other Counts
       Section 288.5, subdivision (a), provides, “Any person who either resides in the
same home with the minor child or has recurring access to the child, who over a period of
time, not less than three months in duration, engages in three or more acts of substantial
sexual conduct with a child under the age of 14 years at the time of the commission of the
offense . . . or three or more acts of lewd or lascivious conduct . . . is guilty of the offense
of continuous sexual abuse of a child . . . .” Subdivision (c) of section 288.5 provides,


4      As calculated, Linares’s sentence consisted of 25 years to life for count 3 (§ 288.7,
subd. (a)), plus a full, consecutive 15 years to life for count 4 (§§ 288.5, subd. (a), 667.6,
subds. (d), (e)(6)), plus a full consecutive 15 years to life for count 6 (§§ 288, subd. (a),
667.61, subds. (b), (c)). The court imposed concurrent 15-year-to-life terms for
counts 1, 2 and 7.

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“No other [felony sex offense] involving the same victim may be charged in the same
proceeding with a charge under this section unless the other charged offense occurred
outside the time period charged under this section or the other offense is charged in the
alternative.”
       Linares acknowledges the time period identified in the amended information for
count 4’s charge of continuous sexual abuse did not overlap with the dates alleged in the
other counts pertaining to Emily and thus complied with section 288.5, subdivision (c).
Specifically, as charged, count 4 applied to acts on or after November 5, 2011, after
Emily turned 10 years old, while counts 1, 2 and 3 charged lewd acts during the period
November 5, 2009 through November 4, 2011, when Emily was eight and nine years old.
However, the amended information was not given to the jury; and none of the jury
instructions identifying the elements of the charges, including the instruction for
continuous sexual abuse (count 4), contained any specific dates. Emphasizing that
omission, Linares contends the continuous sexual abuse instruction permitted the jury to
find him guilty on that count for acts during the same time period as those that were the
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subject of counts 1, 2 and/or 3, in violation of section 288.5, subdivision (c). (See
People v. Johnson (2002) 28 Cal.4th 240, 248 [a defendant may be charged in the
alternative with both continuous sexual abuse under section 288.5 and a discrete act of
sexual abuse during the same time period against the same victim but cannot be convicted
of both].)
       In reviewing a claim of instructional error, we must determine whether “‘there was
a reasonable likelihood the jury applied the challenged instruction in an impermissible


5       As to count 4 the jury was instructed with CALCRIM No. 1120: “The defendant
is charged in Count 4 with continuous sexual abuse of a child under the age of 14 years in
violation of Penal Code section 288.5, [subdivision] (a). [¶] To prove that the defendant
is guilty of this crime, the People must prove that: [¶] 1. The defendant lived in the
same home with or had recurring access to a minor child; [¶] 2. The defendant engaged
in three or more acts of substantial sexual conduct or lewd or lascivious conduct with the
child; [¶] 3. Three or more months passed between the first and last acts; AND [¶]
4. The child was under the age of 14 years at the time of the acts. . . .”

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manner.’ [Citation.] ‘The correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts of an instruction or from a
particular instruction.’ [Citation.] ‘Moreover, any theoretical possibility of confusion
[may be] diminished by the parties’ closing arguments.’” (People v. Hajek and Vo
(2014) 58 Cal.4th 1144, 1220; accord, People v. Houston (2012) 54 Cal.4th 1186, 1229
[“[w]hen considering a claim of instructional error, we review the challenged instruction
in the context of the instructions as a whole and the trial record to determine whether
there is a reasonable likelihood the jury applied the instruction in an impermissible
manner”].)
       As Linares argues, the omission of specific dates in several instructions pertaining
to the elements of counts 1 through 4, considered in isolation, created the potential for an
overlapping period between count 4, continuous sexual abuse of a child under 14 years,
and the other offenses involving Emily. However, any ambiguity was clarified and the
potential for overlap removed by other instructions and closing argument. In particular,
the jury was instructed with CALCRIM No. 3501, a unanimity instruction that
specifically identified November 5, 2009 to November 4, 2011, when Emily was eight
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and nine years old, as the pertinent time period for counts 1 and 2. The prosecutor also
made clear during closing argument that the act of sexual intercourse at issue for count 3
occurred during the same time period as counts 1 and 2: “Sexual intercourse with a child
10 years and younger is count 3[,] [t]he third charge alleged against the defendant. It’s
alleged within the same time frame as the first two lewd acts and I simply must prove the

6       As given CALCRIM No. 3501 provided in part, “The defendant is charged with
Lewd Act upon a Child in Counts 1, 2, 6 and 7 sometime during the period of
November 5, 2009 to November 4, 2011 as to Counts 1 and 2 and October 5, 2000 and
October 4, 2001 as to Counts 6 and 7. [¶] The People have presented evidence of more
than one act to prove that the defendant committed these offenses. 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
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.”

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defendant engaged in some act of sexual intercourse. . . . We know she said it [sexual
penetration of the genital area] was [when she] was eight or nine years old[,] before he
left. So the only question then is did he engage in an act of sexual intercourse or
sodomy?” “The [charge of] intercourse with a child under 11 [is] intended to account for
that time before the defendant had the break in contact. Emily told you she thought [she
was] eight or nine, but before 10. It accounts for that period of time.”
       Significantly, as to count 4, the prosecutor emphasized repeatedly that the crime of
continuous sexual abuse involved a time period different from, and later than, the time
period for counts 1 through 3. After outlining the charges in counts 1 through 3 in the
beginning of closing argument, the prosecutor explained count 4 involved sexual assaults
after Emily’s 10th birthday: “[A]fter she turned 10 until the time she told the police,” she
says “well there [is] stuff happening all the time. . . . Her 10th birthday is the start.
That’s around the period you heard from all the witnesses that Mr. Linares left, was away
from the family for a chunk of time.” To make sure the jury understood the crime of
continuous sexual abuse involved a later time period than the other counts, the prosecutor
further stated: “When you get the instructions you’ll see a couple pages about
[continuous sexual abuse]. . . . [T]he reason the code and the instructions are so long is
because those acts can be lots of different things so long as they are sexual crimes
committed against children. It can be intercourse. It can be oral copulation. It could be
touching. It could even be touching over the clothes. So long as it was three or more
over a period of three months. The way it’s charged it starts from when Emily turned 10
until July 2013 [when] the crime was reported. So we’ve got way more than three
months. That’s the time period after the defendant got back from being away from the
family and Emily talked about it happening, different things happening multiple times.”
       Linares acknowledges the unanimity instruction in CALCRIM No. 3501
adequately advised the jury that counts 1 and 2 involved acts occurring when Emily was
eight and nine years old. However, he argues, even if the prosecutor’s closing argument
clarified that the continuous sexual abuse count covered the period beginning when
Emily was 10 years old, outside the period of counts 1 and 2, the omission of count 3

                                               7
from the unanimity instruction unlawfully permitted the jury to convict him of both the
discrete crime of sexual intercourse with a child 10 years old and younger (count 3) and
continuous sexual abuse of a child under 14 years old (count 4) for acts occurring during
an overlapping time period—when Emily was 10 years old. Again, Linares ignores the
totality of the record. As discussed, the prosecutor specified the acts of sexual
intercourse at issue in count 3 took place, like the two acts of lewd conduct charged in
counts 1 and 2, before Linares left the family home, when Emily was eight or nine years
old. When the record is considered as a whole, there is no reasonable likelihood the jury
interpreted the instructions as Linares suggests and convicted him on count 4 based on
acts that occurred before Emily was 10 years old.
       2. The Court’s Failure To Give a Unanimity Instruction for Count 3, Although
          Error, Was Harmless Beyond a Reasonable Doubt
       A criminal defendant’s right to a jury trial includes the right to a unanimous
verdict, including unanimous agreement on the act constituting the offense charged.
(Cal. Const., art. I, § 16, People v Russo (2001) 25 Cal.4th 1124, 1132.) Therefore, when
an accusatory pleading charges a single criminal act and the evidence shows more than
one such unlawful act, either the prosecution must elect among the crimes or the court
must require the jury to agree on the same criminal act beyond a reasonable doubt.
(Russo, at p. 1132.) “This requirement of unanimity as to the criminal act ‘is intended to
eliminate the danger that the defendant will be convicted even though there is no single
offense which all the jurors agree the defendant committed.’” (Ibid.)
       The trial court has a sua sponte duty to give a unanimity instruction when
supported by the evidence. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) We review
the failure to give a unanimity instruction de novo. (People v. Hernandez (2013)
217 Cal.App.4th 559, 569.)
       Because Emily testified there was more than one act of sexual intercourse when
she was eight or nine years old, Linares contends the court erred in failing to include




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count 3 in the unanimity charge to the jury. The People, on the other hand, contend a
unanimity instruction was unnecessary as to count 3 because the prosecutor elected a
single act of intercourse to be the subject of that count, namely, when Emily awoke on
the pile of blankets in her grandmother’s bedroom to find Linares on top of her. While
Emily provided her most detailed testimony about that particular sexual assault, she also
testified sexual intercourse with Linares had occurred more than once when she was eight
or nine years old. There is nothing in the instructions, closing argument or elsewhere in
the record to support a clear election of the sexual assault on the blankets as the single
offense for count 3.
       Nonetheless, given the jury’s clear rejection of Linares’s only defense—Emily had
fabricated all of the allegations of sexual abuse in retaliation for being disciplined—any
error in the omission of a unanimity instruction as to count 3 was harmless beyond a
                  8
reasonable doubt: The jury necessarily believed Emily’s testimony; and there was no
argument, let alone evidence, to suggest Linares had committed some, but not all, of the
acts she had described. (See People v. Curry (2007) 158 Cal.App.4th 766, 783 [when
“‘the record provides no rational basis, by way of argument or evidence, for the jury to
distinguish between the various acts, and the jury must have believed beyond a


7      As discussed, the unanimity instruction given to the jury addressed counts 1, 2, 6
and 7 and did not require the jury to agree on which act of intercourse was at issue in
count 3.
8      Appellate courts are divided as to the standard of prejudice to apply to the failure
to give a unanimity instruction. (Compare People v. Vargas (2001) 91 Cal.App.4th 506,
561 [applying state law standard of People v. Watson (1956) 46 Cal.2d 818, 836] with
People v. Smith (2005) 132 Cal.App.4th 1537, 1545 [applying federal constitutional
standard of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d
705]]; see also People v. Hernandez, supra, 217 Cal.App.4th at pp. 576-577 [discussing
the split of authority and citing cases].) The majority of courts that have addressed this
issue have applied the Chapman standard for federal constitutional error, concluding, as
do we, that the failure to give the unanimity instruction can result in lowering the
prosecution’s burden of proof in a criminal case, an error of federal constitutional
dimension. (See People v. Curry (2007) 158 Cal.App.4th 766, 784; People v. Wolfe
(2003) 114 Cal.App.4th 177, 186.)

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reasonable doubt that defendant committed all acts if he committed any, the failure to
give a unanimity instruction is harmless’” beyond a reasonable doubt]; People v. Brown
(1996) 42 Cal.App.4th 1493, 1502 [where defendant’s only defense to molestation
charges was that victim was lying and none of the incidents occurred, and there was no
evidence or argument to discriminate between one act of molestation and another, failure
to give unanimity instruction, although error, was harmless beyond a reasonable doubt];
People v. Thompson (1995) 36 Cal.App.4th 843, 853 [“[w]here the record indicates the
jury resolved the basic credibility dispute against the defendant and therefore would have
convicted him of any of the various offenses shown by the evidence, the failure to give
the unanimity instruction is harmless”].)
                                     DISPOSITION
       The judgment is affirmed.




                                                 PERLUSS, P. J.

       We concur:



                     SEGAL, J.



                     BECKLOFF, J.*




*     Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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