Filed 5/6/16 P. v. Angel CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B255349

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA083171)
         v.

DAVID ALVAREZ ANGEL,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Stanley Blumenfeld, Judge. Affirmed.


         Daniel G. Koryn, 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, Assistant Attorney General, Margaret E. Maxwell and Tannaz
Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       David Alvarez Angel was convicted of engaging in three or more acts of
substantial sexual conduct or lewd and lascivious conduct with a child under the age of
14, for at least three months, while residing with or having recurring access to the child.
(Pen. Code, § 288.5, subd. (a).)1 Defendant argues that the trial court erroneously failed
to (1) give a unanimity instruction, sua sponte, and (2) grant a new trial, based on jury
misconduct. We find no error and affirm.
                                          FACTS
       Sandra O. described sexual conduct by defendant that began when she was five or
six years old and continued until 1998, when she was 10. During that time, defendant
was in a relationship with Sandra’s mother, G., and he spent nearly every night at her
home. He babysat Sandra when G. left before 5:00 a.m. for work.
       When Sandra was five or six years old, and G. was at her job, defendant asked
Sandra to sit on his lap while they watched television. She complied, facing away from
him. Defendant turned her to face him, astraddle, and began kissing her neck and chest.
Their genitals were touching through their clothing and he placed his hands on her thighs.
Sandra was confused by this conduct which, to her youthful sensibilities, went on for a
long time.
       After the first incident, defendant no longer kissed her, “but there was more
touching” in the vicinity of her private parts, which occurred “a lot.” When Sandra was
seven or eight, and her mother was away, defendant came to Sandra’s bedroom as she
slept, and instructed her to lie down in the master bedroom. As Sandra dozed, defendant
began rubbing her leg and upper body, and told her to get on top of him. She tried to sit
on his belly button and avoid his private parts, but defendant repositioned her to straddle
his genitals. Sandra understood “that something wrong was going on,” but she complied
because she was scared and he is an adult, so she had to obey.




1      Unlabeled statutory references in this opinion are to the Penal Code.

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       With his genitals touching Sandra’s through their clothing, defendant grasped the
child’s thighs and began to move her back and forth over his penis. He did not say
anything, but breathed heavily. She was scared. After “a long time,” as Sandra recalled,
defendant told her to get off and return to her room.
       Sandra described an incident that occurred when she was about nine years old.
Defendant again asked her to lay down in her mother’s bedroom. Sandra did not
immediately obey, but looked at him, frightened. Defendant removed her “bottoms.”
She tried to hold onto her underpants, but he took them off. Laying on the bed, with her
back to defendant, Sandra felt his naked, somewhat erect penis moving up and down “on
my butt.” He told Sandra “to let him put it inside.” She did not know what he meant, but
said no because “I just know it wouldn’t be good.” Despite her refusal, she felt him
“trying to force” his penis into her buttocks, so “I just squeezed my butt cheeks” to
prevent him from penetrating her. Because he was not getting anywhere, defendant lay
on his back and told Sandra to get on top of him. As she straddled him, he began moving
her back and forth by holding onto her thighs, so that his penis rubbed against her vagina.
Although he did not penetrate her, the force of the movement was painful. This went on
for a long time, until defendant ejaculated onto his stomach.
       This was the only occasion when defendant engaged in skin-to-skin frottage;
however, there were three or four instances of it while they were clothed, when Sandra
was six to eight years old. In addition, defendant had Sandra touch his naked penis,
guiding her with his hand to rub him while he massaged her clitoris. After defendant
ejaculated, he directed her to get tissues to clean off the semen. Sandra was about nine
years old at the time.
       Throughout the time that she knew him, defendant touched Sandra seven to nine
times per month. The touching was of “all kinds,” though her trial testimony described
the “major incidents.” She did not disclose the abuse because she was scared of
defendant. He told her to never tell anyone, and that her mother would not believe her
because G. loved him more than she loved Sandra. Sandra believed him.

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       Sandra disclosed defendant’s sexual misconduct to her mother in 2010, when a
school teacher was accused of molesting students, including Sandra. G. notified the
police, who arranged for Sandra to confront defendant about his behavior in recorded
telephone calls. Defendant initially said, “nothing happened” and “you just shouldn’t get
stuck in the past.” By the same token, defendant also said, “it was just something that,
. . . I mean, your curiosity was awakened.” He offered to help Sandra, was unable to
explain his conduct, and told her to not feel bad about it. Eventually, defendant said,
“You can’t imagine how bad I felt when you told me about [this] and, well, yes, the truth
of the matter is I feel sorry. It feels really bad.” He added, “I’d like to say I’m sorry, and
. . . for you to forgive me.”
                                PROCEDURAL HISTORY
       Defendant was charged with continuous sexual abuse of Sandra O. from 1993 to
1998, while he was residing with and had access to her. (§ 288.5.) A jury found him
guilty. After allowing defendant time to investigate possible juror misconduct, the court
denied defendant’s motions for a new trial. (§ 1181.) He was sentenced to the low term
of six years in prison. He appeals.
                                       DISCUSSION
1. No Unanimity Instruction Was Required
       To convict a defendant of continuous sexual abuse of a child, the jury “need
unanimously agree only that the requisite number of acts occurred not on which acts
constitute the requisite number.” (§ 288.5, subd. (b).)2 Defendant argues that the statute
“is incompatible with both California and federal constitutional guarantees of due process
and the right to trial by jury.” Due to this perceived infirmity, defendant reasons that the




2     The corresponding jury instruction, which was given, is CALCRIM No. 1120:
“You cannot convict the defendant unless all of you agree that he committed three or
more acts over a period of at least three months, but you do not all need to agree on
which three acts were committed.”

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trial court was required to provide a standard unanimity instruction, though trial counsel
did not request one.
       With respect to defendant’s federal claim, the Supreme Court “has never held jury
unanimity to be a requisite of due process of law. Indeed, the Court has more than once
expressly said that ‘[i]n criminal cases due process of law is not denied by a state law . . .
which dispenses with the necessity of . . . unanimity in the verdict.’” (Johnson v.
Louisiana (1972) 406 U.S. 356, 359; People v. Adames (1997) 54 Cal.App.4th 198, 207;
People v. Vargas (2001) 91 Cal.App.4th 506, 562.) Thus, section 288.5 does not violate
due process guarantees in the federal Constitution. Instead, the unanimity requirement is
found in the state Constitution. (Cal. Const., art. I, § 16; People v. Jones (1990) 51
Cal.3d 294, 321.) Even so, no appellate court in this state has ever agreed with the
constitutional challenge that defendant raises here.
       Section 288.5 is designed to address the situation presented by a resident molester
who has unchecked access to a child and repeatedly molests her over a prolonged
period—in this case, over the course of some five years. (See People v. Rodriguez (2002)
28 Cal.4th 543, 549-550 [explaining the legislative purpose of § 288.5].) “‘The crime of
continuous sexual abuse of a child (§ 288.5) is a continuous-course-of-conduct crime and
therefore falls within the exception to the rule that jurors must agree on the particular
criminal acts committed by the defendant before convicting him.’ [Citation.] The
continuous-course-of-conduct exception to the unanimity requirement applies when, as
here, the statute contemplates a continuous series of acts over a period of time.
[Citation.] There is no violation of the constitutional right to unanimous agreement on
the criminal conduct because the actus reus of the offense is the course of conduct, not a
specific act.” (People v. Cissna (2010) 182 Cal.App.4th 1105, 1124; People v. Gear
(1993) 19 Cal.App.4th 86, 91-93; People v. Whitham (1995) 38 Cal.App.4th 1282, 1295-
1298; People v. Adames, supra, 54 Cal.App.4th at p. 208; People v. Avina (1993) 14
Cal.App.4th 1303, 1308-1313; People v. Cortes (1999) 71 Cal.App.4th 62, 74-75.)



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       Defendant maintains that three acts of molestation are an essential element of
section 288.5, so each act must be proved beyond a reasonable doubt. Not so. While
“the number of acts of molestation is an essential element of the crime[,] unanimity on
which acts . . . is not.” (People v. Higgins (1992) 9 Cal.App.4th 294, 307.)
       The state Supreme Court has rejected the notion that unanimity is “unattainable
where testimony regarding repeated identical offenses is presented in child molestation
cases. In such cases, although the jury may not be able to readily distinguish between the
various acts, it is certainly capable of unanimously agreeing that they took place in the
number and manner described.” (People v. Jones, supra, 51 Cal.3d at p. 321.) The court
noted that the ‘“true issue”’ is the credibility of the child: the jury will believe the child’s
testimony describing consistent repetitive acts, or it will disbelieve it. “‘In either event, a
defendant will have his unanimous jury verdict [citation] and the prosecution will have
proven beyond a reasonable doubt that the defendant committed a specific act, for if the
jury believes the defendant committed all the acts it necessarily believes he committed
each specific act. [Citations]’” (Id. at p. 322.)
       By being charged with a single count of continuous sexual abuse under section
288.5, defendant avoided being charged with innumerable violations of section 288—
potentially seven to nine criminal violations per month—that could result in a long prison
sentence. In People v. Jones, for example, a resident child molester charged with 28
counts of lewd and lascivious acts on children under the age of 14 could be convicted
with “generic testimony,” each incident a separate offense and criminal sanction. (51
Cal.3d at pp. 300, 314-315.) “Defendant, having been charged and convicted of only one
count of the continuous sexual abuse of a child rather than the multiple counts available
[under section 288], is a beneficiary of section 288.5 and an odd champion for its
demise.” (People v. Higgins, supra, 9 Cal.App.4th at p. 308.)




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       In any event, failure to give a unanimity instruction was harmless where, as here,
the defense is that the victim lied as to all of the sexual incidents she described.3 The
jury rejected the defense. In this scenario, where there is no basis to discriminate among
many incidents of sexual abuse, and the jury believed the victim, the lack of a unanimity
instruction is harmless. (People v. Brown (1996) 42 Cal.App.4th 1493, 1502.)
2. Juror Misconduct
       Defendant exercised his Fifth Amendment right to not testify at trial. The jury
was instructed that defendant has a constitutional right not to testify. Jurors were not to
consider “for any reason at all” his failure to testify, nor discuss it during deliberations,
nor let it influence their decision. Violating this instruction is misconduct that gives rise
to a presumption of prejudice, “which may be rebutted by an affirmative evidentiary
showing that prejudice does not exist or by a reviewing court’s examination of the entire
record to determine whether there is a reasonable probability of actual harm resulting
from the misconduct.” (People v. Lavender (2014) 60 Cal.4th 679, 687.)
       Defense counsel spoke to the jury foreperson outside the courtroom after trial.
According to defense counsel, the foreperson “said that the reason why the jury convicted
[defendant] so quickly was because he did not testify. She said that during deliberations
some members of the jury said that they could not understand why an innocent person
would not take the stand and testify, unless he was guilty.” The prosecutor countered that
the foreperson told her that the jury relied on the victim’s credible testimony and the
recorded phone calls.
       The court authorized interviews with six jurors who consented to the release of
their personal identification information. Five of them heard absolutely no discussion
about defendant’s failure to testify. The sixth juror overheard a comment about



3     Defense counsel argued, “The question is, has the state proven beyond a
reasonable doubt that [Sandra] [is] telling the truth” equating this prosecution to “the
Spanish Inquisition, the Salem witch trials [and] the McMartin preschool case.”

                                               7
defendant’s failure to take the stand, but that person was told by another juror that they
were not allowed to consider the topic, and it was never brought up again.
       Based on the investigation, the trial court denied a new trial because “there is no
reliable evidence of a substantial discussion during deliberations about the defendant’s
exercise of his right to remain silent. Rather, it appears that there was a fleeting reference
to this fact, which was promptly followed by another juror’s admonition that the jury
could not consider the defendant’s silence at trial. The admonition apparently was
effective, as the subject matter was dropped immediately after being raised.”
       The trial court’s denial of a new trial cannot be disturbed absent ‘““‘a manifest and
unmistakable abuse of discretion.’””’ (People v. Staten (2000) 24 Cal.4th 434, 466.)
“‘[W]e accept the trial court’s credibility determinations and findings on questions of
historical fact if supported by substantial evidence.’” (People v. Danks (2004) 32 Cal.4th
269, 304; People v. Leonard (2007) 40 Cal.4th 1370, 1425.) “‘If we conclude there was
misconduct, we then consider whether the misconduct was prejudicial.’” (People v.
Loker (2008) 44 Cal.4th 691, 747.)
       The record reflects that the six jurors who were interviewed after trial denied any
consideration of defendant’s failure to testify. No one recalled that the topic figured in
deliberations. If someone mentioned it, it was promptly discarded as off limits. “It is
natural for jurors to wonder about a defendant’s absence from the witness stand,” and if
the comments on this subject were brief, played no role in deliberations, and the jurors
were reminded that it is not a proper subject, the presumption of prejudice is rebutted.
(People v. Loker, supra, 44 Cal.4th at pp. 748-749.) A fleeting comment, quickly
silenced, “‘is not the same as punishing the Defendant for not testifying. It is not the
same as drawing negative inferences from the absence of testimony.”’ (People v.
Leonard, supra, 40 Cal.4th at p. 1425.)
       The court accepted the interviewed jurors’ version of their discussions. By
contrast, it deemed defense counsel’s declaration regarding his brief hallway discussion
with the foreperson “to be of limited reliability,” imprecise, and “lacking in important

                                              8
detail.” We defer to this credibility determination. (People v. Loker, supra, 44 Cal.4th at
p. 749.) Given the transitory nature of the single comment identified by one juror, we
conclude that defendant was not prejudiced. A new trial was unwarranted.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                          BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       CHAVEZ, J.




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