Filed 4/25/14 P. v. Jimenez CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136579
v.
OBDULIO AMBROSIO JIMENEZ,                                            (Alameda County
                                                                     Super. Ct. No. CH50143)
         Defendant and Appellant.


                                                 I. INTRODUCTION
         Appellant was charged with intercourse or sodomy with a child under 10 years
old. During his first trial, the court recessed overnight while the victim was testifying on
direct examination. The following morning, before the trial resumed, the prosecutor met
with the victim to discuss a key issue in her testimony. The prosecutor did not tell
appellant’s trial counsel about the meeting.
         Appellant’s first trial ended in a mistrial, for reasons unrelated to the present
appeal. Before appellant’s retrial, his counsel learned the prosecutor had met with the
victim during her testimony in the first trial. Appellant moved to dismiss the charges
based on prosecutorial misconduct, but the trial court denied the motion. Appellant
contends the trial court erred in failing to dismiss the original charges on the grounds of
prosecutorial misconduct. We conclude that the mid-testimony meeting between the
prosecutor and the victim was not misconduct.
         In addition, before appellant’s retrial, the prosecution filed an amended
information adding charges of forcible lewd act on a child. At the second trial, the jury


                                                             1
convicted appellant on the original charges, but did not return a verdict on the added
charges. The prosecutor dismissed the added charges.
       Appellant contends that the trial court erred in discharging the jury without
requiring it to return a verdict on the additional charges. We reject this contention as
well, and affirm appellant’s conviction.
                       II. FACTS AND PROCEDURAL BACKGROUND
       During part of 2008, all of 2009, and part of 2010, appellant lived with the family
of his wife’s brother. That family had three children: a girl, “Jane,”1 who was under the
age of 10 at all relevant times; her brother A., who was about four years older than Jane;
and a daughter five years younger than Jane. During most of the time that appellant lived
with the family, he shared a bedroom with the two older children. A. and Jane slept in a
bunk bed, with A. on the upper bunk, and Jane on the lower bunk. Appellant occupied a
separate bed in the same room.
       While appellant shared a bedroom with the children, he repeatedly touched Jane in
a sexual manner during the night.2 A. sometimes woke up and saw appellant in or next to
Jane’s bed; when this occurred, appellant told A. to be quiet. One night, A. got up to use
the bathroom, and as he climbed down the ladder from his bunk, appellant jumped up
from where he was crouching over Jane and returned to his own bed. Another night, A.
traded beds with Jane, and was awakened by appellant getting into the bottom bunk with
him and rubbing his legs and shoulders. Appellant left when A. told him to stop and got
out of bed. Appellant told A. not to tell his parents that appellant was getting into Jane’s
bed, and bribed A. to persuade Jane not to tell their parents about the abuse.
       After appellant moved out of the house, Jane told a counselor at her school that
appellant had sexually molested her. The counselor referred the matter to the police, and
       1
          “Jane” was the victim of appellant’s crimes. To protect her privacy, she was
referred to at the second trial as Jane Doe. In their briefs on this appeal, the parties refer
to her as Jane; we will do the same. To protect the privacy of Jane’s brother, we refer to
him by his first initial only.
       2
        The details of Jane’s testimony regarding the molestation are discussed post, in
connection with appellant’s prosecutorial misconduct claim.


                                               2
Jane was interviewed by a police officer, and then by a counselor at an organization that
specialized in interviewing victims of suspected child abuse.
       Several weeks after the abuse ended, Dr. James Crawford-Jakubiak, an expert on
child sexual assault examinations, examined Jane. He did not find evidence of significant
injury to Jane’s vagina or anus, but in his opinion, such injuries could have healed due to
the passage of time, so the lack of such injury was not inconsistent with the possibility
that the abuse occurred. Moreover, Dr. Crawford-Jakubiak opined that appellant could
have derived sexual gratification by placing his penis between Jane’s labia without
penetrating her vagina, as is often done by abusers of young girls, in which case no
tearing of tissue or significant damage to her vagina would have occurred.
       On May 26, 2011, an amended information was filed charging appellant with four
counts of intercourse or sodomy with a child under 10 years old, in violation of Penal
Code section 288.7, subdivision (a).3 Appellant’s first trial on those charges (the
section 288.7 charges) ended in a mistrial for reasons unrelated to this appeal. On May 3,
2012, the prosecution filed a second amended information which included both the
original section 288.7 charges, and four additional counts (the section 288 charges) of
committing a forcible lewd act on a child under 14. (§ 288, subd. (b)(1).)
       At the conclusion of appellant’s second trial, the jury returned a verdict of guilty
on the section 288.7 charges. It failed to return a verdict on the section 288 charges, and
they were dismissed on the prosecution’s motion. On August 30, 2012, the trial court
sentenced appellant to an indefinite term of 100 years to life in state prison. This timely
appeal ensued.
                                       III. DISCUSSION
              A. Denial of Motion to Dismiss for Prosecutorial Misconduct
                                      1. Background
       At the preliminary hearing in this case, Jane testified that the first time appellant
touched her in a way she did not like was when he lay on her bed next to her and touched

       3
           All further statutory references are to the Penal Code unless otherwise stated.


                                               3
his private to the outside of her private. She also testified that after doing this, appellant
undid his zipper and “put his private in my private”; that is, he started by putting his
private on the outside of Jane’s, and then put it on the inside.
       At appellant’s first trial, the prosecutor again asked Jane about the first time
appellant touched her in a way she did not like. Jane responded that when she was six
years old, while she was lying on her back in bed, appellant “put his hand on my private”
under her underwear, and touched her body with “[h]is private.” (Italics added.) The
prosecutor followed up by asking Jane where she was when appellant “put his hand in
[her] private.” (Italics added.) Jane then marked some diagrams to show what she meant
by her own “private” and appellant’s “private.” The prosecutor then asked her where
appellant’s private touched her, and Jane responded, “In my private.” (Italics added.)
When asked to give the details of that incident, Jane said appellant took off her pants and
underwear, and “put his private on my private.” (Italics added.) Both the prosecutor and
Jane thereafter used both the term “on my private” and the term “in my private” to
describe where appellant put his “private” during this first incident, but the prosecutor
used “in my private” more frequently and consistently.
       At the end of the court day, the prosecutor had not yet completed her direct
examination of Jane. After the court excused the jury for the evening, appellant’s trial
counsel moved unsuccessfully for a mistrial, for reasons not relevant to this appeal.
During the colloquy on the motion, the court commented that appellant’s main defense
appeared to be the prosecution’s failure to prove penetration, based on Jane’s repeated
use of the expression “on her private” (as opposed to “in her private”).
       The following morning, as soon as Jane’s direct testimony resumed, the prosecutor
asked her to mark a diagram to show “where specifically [Jane] felt the poking” when
appellant “touch[ed] [Jane’s] private area with his private area.” Jane marked the
diagram to reflect where appellant touched her, indicating the line at the junction of her
labia, and then answered in the affirmative to the prosecutor’s question whether appellant




                                               4
went “inside that line.”4 Later in Jane’s direct testimony, the prosecutor asked her, “Did
you feel [appellant’s] private area poke you where you go poo,” and Jane responded
affirmatively.
       During his cross-examination of Jane in the first trial, appellant’s trial counsel
asked her when was the last time she had talked about the case with the prosecutor. Jane
responded that she had met with the prosecutor in the latter’s office before court that very
morning, and that the prosecutor had shown her the same diagrams she had marked in
court during her direct examination earlier that day. Jane related that the prosecutor had
also asked her during the meeting whether appellant’s private went in her private, and
had told her where to mark the diagrams. On redirect, however, Jane clarified (after
considerable prompting from the prosecutor) that the diagrams were not marked when the
prosecutor showed them to her before court that morning.
       After a mistrial was declared in the first trial for reasons unrelated to this appeal,
appellant moved to dismiss the charges, contending that the prosecutor had coached the
witness, and that this constituted outrageous government misconduct.5 In opposition, the
prosecutor filed a declaration stating that during her morning meeting with Jane before
the second day of Jane’s testimony, she showed Jane blank diagrams and asked her to
point to where she felt poking when appellant was on top of her, and when appellant “put
his private in her butt.” The prosecutor denied making any attempt to influence Jane by
indicating any particular location where appellant touched her. The trial court denied the
motion to dismiss. Appellant now contends this was error.



       4
          At the second trial, Jane’s testimony established penetration more clearly. She
illustrated what appellant did to her through a demonstration in which she inserted about
one-third of the length of a pen, representing appellant’s “private,” into a slit between two
pieces of plastic covering the opening of a box of tissues. She did a similar
demonstration with a pen and a doll.
       5
         In the same motion, appellant also sought to disqualify the prosecutor on the
ground that she might be called as a witness. That motion was mooted when the case was
reassigned, prior to the second trial, to a different prosecuting attorney.


                                              5
                             2. Prosecutorial Misconduct
       As respondent acknowledges, when prosecutorial misconduct “infects the trial
with such unfairness as to make the conviction a denial of due process,” the due process
clause of the federal Constitution requires reversal. (People v. Morales (2001) 25 Cal.4th
34, 44.) Reversal is also required, under California law, when a prosecutor uses
“ ‘ “deceptive or reprehensible methods to attempt to persuade either the court or the
jury” ’ ” (People v. Espinoza (1992) 3 Cal.4th 806, 820), or when the government’s
conduct in connection with a criminal prosecution is “ ‘ “so grossly shocking and so
outrageous as to violate the universal sense of justice.” ’ [Citation.]” (People v. Maury
(2003) 30 Cal.4th 342, 418, fn. 17.) Examples of prosecutorial misconduct justifying the
dismissal of criminal charges or reversal of a conviction include having a prosecution
investigator eavesdrop on the defendant’s conversations with his counsel in a courtroom
holding area (Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1254-1255);
informing a defendant that if he wanted to negotiate a plea bargain, he would have to fire
his attorney and get a new lawyer acceptable to the prosecution (Boulas v. Superior Court
(1986) 188 Cal.App.3d 422, 429-436); and having a law enforcement officer infiltrate
confidential conferences between a group of arrested political protestors and their counsel
(Barber v. Municipal Court (1979) 24 Cal.3d 742, 755-760).
       In contrast, it is not inherently improper for a prosecutor to meet with a
prosecution witness while the court is in recess during the witness’s direct testimony.
Witness interviews are an important part of trial preparation, and there is nothing
improper about a prosecutor meeting with a crime victim or other government witness to
discuss the person’s upcoming testimony. (See People v. Rich (1988) 45 Cal.3d 1036,
1095 [prosecutor did not commit misconduct by meeting with court-appointed expert
during trial and then calling same expert as rebuttal witness]; People v. Norred (1952)
110 Cal.App.2d 492, 495-496 [in absence of evidence of coaching, fact that 5-year-old
molestation victim identified defendant at trial after having been unable to do so at
preliminary hearing did not demonstrate prosecutorial misconduct justifying reversal of
conviction]; U.S. v. Rivera-Hernandez (1st Cir. 2007) 497 F.3d 71, 80 [“Prosecutors and


                                             6
defense attorneys alike are entitled to prepare their witnesses.”]; U.S. v. Nambo-Barajas
(8th Cir. 2003) 338 F.3d 956, 963 [“Meeting with a witness before trial, by itself,
suggests no impropriety.”].)
       Appellant characterizes the prosecutor’s conduct during her mid-trial meeting with
Jane as “coaching,” but the record does not support this contention. The prosecutor flatly
denied having attempted to influence Jane’s testimony. This denial is corroborated by the
fact that at the preliminary hearing, well before the prosecutor’s mid-trial meeting with
Jane, Jane testified explicitly that appellant put his private inside her private. Thus,
Jane’s testimony at the first trial about penetration was consistent with testimony she
gave long before the prosecutor allegedly coached her.
       We also note that the asserted misconduct of which appellant complains was
committed during a different trial than the one resulting in appellant’s conviction, and by
a prosecutor who was not involved in the second trial. By the time of the second trial,
appellant’s trial counsel was well aware of the facts regarding the former prosecutor’s
mid-testimony meeting with Jane, and made use of those facts in cross-examining Jane to
cast doubt on her credibility. Counsel also commented during his closing argument on
the mid-trial meeting between Jane and the former prosecutor. Thus, unlike many
situations in which prosecutorial misconduct is claimed, here the jury was made aware
that Jane had met with the former prosecutor during her prior testimony, and was able to
take that into account in assessing her credibility.
       For all of the foregoing reasons, we are not persuaded that anything about the
conduct of the prosecutor at appellant’s first trial warrants the reversal of the convictions
resulting from his second trial.
                       B. Dismissal of Jury After Partial Verdict
                                     1. Background
       The parties agreed that the section 288 charges were not lesser included offenses
of the section 288.7 charges. The jury instructions and verdict forms did not include
anything that was likely to have misled the jury on that issue. Rather, the jury was
instructed that each count charged was a separate crime, and should be considered and


                                              7
decided separately. Nonetheless, when the jury at the second trial announced that it had
reached a verdict, this was not actually the case; the jury had not reached a verdict on the
section 288 charges, and the verdict forms for those charges remained blank.
       When the jury returned to the courtroom with its verdict, the trial court instructed
the clerk to read the verdict and poll the jury, which proved to be unanimous. The judge
then instructed the clerk to record the verdict; explained to the jurors their rights with
respect to discussing the case with counsel; thanked the jurors for their service; and
dismissed the jury.
       Almost immediately after the jurors left the courtroom,6 appellant’s trial counsel
moved for a new trial based on the jury’s failure to render a verdict on the section 288
charges. The trial judge responded that he assumed the prosecutor would dismiss those
charges. The prosecutor immediately moved to do so, and the trial judge granted the
motion. Appellant renewed his motion for new trial at the sentencing hearing, but the trial
judge again denied it, reasoning that the section 288.7 charges were more serious and
more important.
       Appellant now argues that his conviction on the section 288.7 charges should be
reversed due to the trial court’s error in failing to require the jury to complete its
deliberations by returning a verdict on the section 288 charges. Respondent argues that
there was no error. In the alternative, respondent contends that the Watson standard of
harmless error applies (People v. Watson (1956) 46 Cal.2d 818, 836), and under that
standard, any error was harmless.



       6
          Appellant’s opening brief states that his trial counsel “apprised the court” of the
problem when “the jurors were just leaving the courtroom” after being discharged. This
mischaracterizes the record, which affirmatively shows that by the time appellant’s trial
counsel first mentioned that the verdict was incomplete, none of the jurors remained in
the courtroom. At that point, it was too late to remedy the problem by reconvening the
jury. (See People v. Hendricks (1987) 43 Cal.3d 584, 597-599 [if verdict is incomplete
or otherwise irregular, trial court retains jurisdiction to reconvene jury only if jury has not
yet left court’s control].) Respondent does not argue forfeiture or waiver, however, and
in light of our rejection of appellant’s argument on the merits, the issue is immaterial.


                                               8
                          2. Acceptance of Incomplete Verdict
       In arguing that his conviction should be reversed based on the trial court’s
acceptance of an incomplete verdict, appellant also relies on case law, both from
California and from other jurisdictions, indicating that a trial court may choose to receive
a partial verdict, but that it is preferable to permit the jury to continue to deliberate until a
complete verdict is reached. Appellant does not, however, cite any authority for the
proposition he seeks to advance here, i.e., that a jury’s guilty verdict on some counts of
an information, which is supported by substantial evidence,7 must be reversed if the jury
failed to return a verdict on the other counts. In fact, the California authority bearing on
the issue, though neither ample nor directly on point, tends to undermine appellant’s
position. (See People v. Rigney (1961) 55 Cal.2d 236, 246-247 [trial court did not
commit error in instructing jury to return its verdict on each count separately]; People v.
Jones (1969) 274 Cal.App.2d 614, 620-621 [jury’s inability to reach verdict on charge of
conspiracy to commit robbery did not require reversal of conviction for related charge of
aiding and abetting attempted robbery].)
       Appellant cites a federal case, U.S. v. Benedict (8th Cir. 1996) 95 F.3d 17
(Benedict), for the proposition that his conviction should be reversed due to the jury’s
failure to return a complete verdict. But that decision had nothing to do with the
California statute (§ 1164) that appellant claims the trial court violated here by accepting
the jury’s partial verdict. For that reason alone it is not persuasive. However, even
considering Benedict, that case is distinguishable from the instant case in a number of
important respects.
       In Benedict, the defendant was charged with four offenses in connection with the
burglary of a post office: (1) conspiracy to burglarize a post office; (2) conspiracy to steal
post office property; (3) aiding and abetting post office burglary; and (4) aiding and
abetting theft of post office property. (95 F.3d at p. 18.) The opinion does not include a


       7
        Appellant does not argue that his convictions on the section 288.7 charges are
not supported by substantial evidence.


                                                9
recitation of the facts underlying the charges, but it is clear from the opinion that they all
arose from a single incident.
       A few hours after the case was submitted to the jury in Benedict, the jurors sent
the court a note stating that they were having difficulty differentiating between count 2
and count 4. The court responded that count 2 charged conspiracy to commit larceny,
and count 4 charged the larceny itself. Two hours later, the jurors sent a note saying they
had reached a verdict on three counts. On the remaining count, the jurors reported that
they had moved from a vote of 10-to-2 to one of 11-to-1 within the last half hour, but had
not yet achieved unanimity. (95 F.3d at p. 18.)
       Defendant requested that the court simply instruct the jury to continue
deliberating. Instead, the court directed the jury to return final verdicts on the three
counts they had decided, and then continue to deliberate on the fourth. The jury asked to
deliberate further, but after doing so for 20 minutes, informed the court there had been no
progress. The court then received and recorded as final the jury’s partial verdict, which
acquitted the defendant on the burglary and conspiracy to commit burglary charges
(counts 1 and 3), but found him guilty on the substantive theft charge (count 4). The
court denied the defendant’s motion for a mistrial on the conspiracy to commit theft
charge (count 2), and directed the jury to continue deliberating after a three-day weekend
recess. (Benedict, supra, 95 F.3d at pp. 18-19.)
       When court reconvened, the defendant renewed his motion for a mistrial on
count 2, and argued, alternatively, that the court should resubmit all the counts to the jury
for further deliberations, because count 2, which the jury had not yet decided, was
“inextricably linked” to count 4, the only count on which the jury had found the
defendant guilty. The court rejected these arguments, and instructed the jury to continue
deliberating. Less than an hour later, the jurors indicated they were deadlocked on
count 2, and the prosecution agreed to dismiss it. (Benedict, supra, 95 F.3d at p. 19.)
       On the defendant’s appeal, the Eighth Circuit rejected the argument that a federal
district court “lacks the legal authority to take a partial verdict in any criminal case
involving multiple counts against a single defendant,” noting that “all other [federal]


                                              10
circuits to consider the question have approved the practice. [Citations.]” (Benedict,
supra, 95 F.3d at p. 19.) Considering the specific circumstances of the case before it,
however, the court held that the trial court had abused its discretion in recording a partial
verdict as final, without a declaration of deadlock by the jury, in the absence of a request
by either party, over the objections of the defendant, and without first informing the jury
that its partial verdict would be recorded as final on the affected counts, or giving the jury
the option of continuing to deliberate. (Id. at pp. 19-20.)
       As an additional reason for its holding, the Benedict court characterized it as
“particularly troubling that the outstanding charge of conspiracy to commit post office
theft was so closely related to the substantive theft offense for which the jury announced
a guilty verdict and to which the jury was not permitted to return during the remaining
deliberations.” (Benedict, supra, 95 F.3d at p. 20.) Because the two charges were so
closely related, the court found it “difficult to imagine that the jury could continue to
deliberate on the conspiracy charge without reweighing the evidence with respect to the
substantive offense,” since “the government’s evidence on both counts was virtually the
same,” and “[t]he jury expressed as much when it asked for clarification between the two
charges.” (Ibid.)
       Unlike in Benedict, the record here does not reflect any hesitancy on the jury’s
part to credit the prosecution’s evidence. There was no charge on which the jury found
appellant not guilty, and no charge as to which the jury reported that it had deliberated
unsuccessfully or had reached a deadlock.
       In addition, in the present case, the prosecution presented evidence that appellant
molested Jane frequently and repeatedly for a period of years. Once again, unlike in
Benedict, in which the prosecution presented evidence that the defendant committed a
single course of conduct which violated four separate criminal statutes, in the present
case the prosecution’s evidence, if credited, showed that appellant committed numerous,
separate acts, each of which could have been found to violate either or both of the same




                                             11
two criminal statutes.8 Thus, the jury in the instant case could have deliberated on the
section 288 charges without reweighing the evidence with respect to the section 288.7
charges.
       Finally, in Benedict, supra, 95 F.3d 17, the trial court affirmatively instructed the
jury to return a partial verdict, over the defendant’s objection. Here, the jury’s return of
an incomplete verdict was its own decision, perhaps the result of an inadvertent error or
misunderstanding. The trial court did not create the situation; it merely decided to accept
it, on the basis of its assumption—which proved to be correct—that the prosecution
would dismiss the unresolved charges. For all of the foregoing reasons, Benedict does
not persuade us that the trial court erred in accepting the jury’s partial verdict in the
present case.
                                    3. Harmless Error
       Moreover, even if the trial court erred, any error was harmless. We agree with
respondent that the Watson standard applies on this issue. When, as here, a trial court’s
error consists exclusively of an asserted violation of California state law, and does not
implicate the federal Constitution, review is exclusively under the Watson standard.
(See, e.g., People v. Beltran (2013) 56 Cal.4th 935, 955.) “ ‘[U]nder Watson, a defendant
must show it is reasonably probable a more favorable result would have been obtained
absent the error.’ [Citation.]” (Ibid.)
       In anticipation of respondent’s harmless error argument, appellant’s brief contends
that “it cannot be said that the jury’s findings on the section 288.7 charges would have
withstood the jury’s scrutiny in further deliberations where the section 288 charges


       8
         The second amended information pleaded the facts of both the section 288
charges and the section 288.7 charges in very general terms. It alleged the bare statutory
elements of the respective offenses in identical language as to each count, without
elaborating further except to allege that each offense occurred between November 1,
2006, and March 28, 2010. Jane testified that appellant sexually abused her every night
during the time period specified in the charges. She dated her recollections only in
general terms, such as where the family was living at the time, or what grade she was in
at school.


                                              12
depended on the exact same evidence.” Appellant also asserts that because the undecided
section 288 charges “were based on the virtually [sic] same evidence upon which the
state relied to obtain a guilty verdict” on the section 288.7 charges, “it is difficult to
imagine that the jury could continue to deliberate [on the undecided charges] without
reweighing the evidence” on the counts it had already decided.
       We are not persuaded. Because neither the charges nor Jane’s testimony were
specific as to dates, the jury could have arrived at a guilty verdict on the four
section 288.7 violations, and then proceeded to deliberate on whether appellant violated
section 288 on separate occasions from the section 288.7 violations. Thus, if (as
appellant’s argument implies) the jury should have been instructed to deliberate further
on the section 288 charges, it easily could have done so without revisiting the
section 288.7 charges at all.9 For that reason, even if the trial court erred, appellant has
not carried his burden of persuading us there is a reasonable probability that requiring the
jury to deliberate on the section 288 charges would have resulted in an outcome more
favorable to him.




       9
          Moreover, the jury had been instructed that each count of the information
alleged a separate crime. Thus, it not only reasonably could, but most likely would, have
proceeded on the premise that the section 288 charges involved different incidents than
the section 288.7 charges.


                                               13
                                 IV. DISPOSITION
     The judgment is affirmed.




                                            _________________________
                                            RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
RIVERA, J.




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