Filed 9/14/16 P. v. Gaticonde 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                         G052080

         v.                                                            (Super. Ct. No. 12CF1857)

LAURENCIO GATICACONDE,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County,
James Edward Rogan, Judge. Affirmed.
                   Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson,
Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff
and Respondent.
                                             *               *               *
                                    INTRODUCTION
              A jury found defendant Laurencio Gaticaconde (Defendant) guilty, as
charged, as follows: Count 1—oral copulation on a person under 14 years of age (Pen.
Code, 288a, subd. (c)(1); Counts 2 and 3—commiting a lewd act upon a child under 14
years of age (id., § 288, subd. (a)); Counts 4 and 5—committing a lewd act upon a person
of 14 or 15 years of age and more than 10 years younger than the defendant (id., § 288,
subd. (c)(1)); Count 6—unlawful sexual intercourse with a minor more than three years
younger than the defendant (id., § 261.5, subd. (c)); and Count 7—attempted kidnapping
(id., §§ 207, subd. (a), 664, subd. (a)). The trial court sentenced Defendant to a total of
14 years in prison.
                                                                        1
              Defendant argues the prosecutor committed misconduct during closing
argument by misstating the jury unanimity rule and, to the extent the issue was forfeited,
his trial counsel was ineffective by failing to pose an objection. We conclude the issue
was forfeited and there was no ineffective assistance of counsel. We therefore affirm.


                                          FACTS
              We view the evidence in the light most favorable to the judgment of
conviction and resolve all conflicts in its favor. (People v. Barnes (1986) 42 Cal.3d 284,
303; In re Roark (1996) 48 Cal.App.4th 1946, 1948, fn. 3.)

                                              I.
                               The Incident at the Market
              M., the victim, was 21 years of age at the time of trial. She has two
children—L., who was five years of age at the time of trial, and J., who was one and a
half years of age at the time of trial. M.’s mother, M.C, had been living with Defendant

 1
   We will use the term prosecutorial error because it is a more apt description than
prosecutorial misconduct. (People v. Centeno (2014) 60 Cal.4th 659, 666-667.)

                                              2
since M. was about two years of age. Although M.C. and Defendant never married, M.
thought of him as her father and called him “dad.” Defendant treated M. as his own child
and disciplined her. M. had an older sister by the same father, and M.C. had five children
by Defendant.
              On June 19, 2012, M. dropped L. off at M.C.’s house where her sister
would babysit while M. was at work at a restaurant. M.’s then-boyfriend picked up M.
and drove her to work. On the way, M. noticed that Defendant was following them in his
truck. The boyfriend dropped M. off at a market to buy something before she reported to
work. As M. was leaving the market, she saw Defendant duck behind a “little machine”
vending teddy bears. M. was frightened and went back inside the market. M. thought
perhaps Defendant was going to scream at her about her boyfriend.
              Defendant walked up to M., grabbed her by the neck, and took her out of
the market. Once outside, M. tried to get away. Defendant’s keys fell to the ground and
he let her go. Defendant picked up his keys, returned to his truck, and drove off. M.
walked to the restaurant, where somebody dialed 911.

                                            II.
                            M. Reports Defendant’s Abuse.
                                                                     2
              Santa Ana Police Officer Le responded to the 911 call. M. told Le that,
when she dropped L. off at M.C.’s house, Defendant asked M. to have sex with him. He
said that was the only condition for him to accept her as part of the family. M. refused.
She believed that was why Defendant became angry, followed her to work, and grabbed
her by the neck at the market. M. told Le that Defendant had started molesting her when
she was 11 years old. Using his position of authority as a parent, Defendant persuaded
M. to orally copulate him and fondle his penis with her hand. He gave her $5 for each

 2
   Le’s testimony was introduced by stipulation. Le’s first name does not appear in the
record.

                                             3
time she performed either act. She had done more than 25 oral copulations and 25
fondling incidents with Defendant over a two-year period.
               M. told Le that when she was 13 or 15 years of age, Defendant began
having sexual intercourse with her. These incidents took place in the home, in his vehicle
parked on the street, and in motels. She remembered, in particular, being taken to the
Starlight Motel and Villa Motel in Stanton. Defendant stopped having sexual intercourse
with M. in 2009 when she became pregnant by her then-boyfriend. She estimated having
had sexual intercourse with Defendant at least 100 times between 2005 and 2009. He
encouraged her to have sex with him by buying her gold jewelry and promising to take
care of her.

                                             III.
                        M.’s Covert Telephone Call to Defendant
               Corporal Jaime Rodriguez of the Santa Ana Police Department’s sex crimes
unit arranged for M. to place a covert telephone call to Defendant. Before the call,
Rodriguez asked M. to set up a meeting with Defendant in a public location where he
could be taken into custody. The call was recorded, the recording was transcribed and
translated from Spanish to English, and the transcription was received in evidence as
exhibit No. 11.
               Soon after answering the call, Defendant asked M. why she stuck up her
finger at him. She said she did so because he had called her a whore. M. asked
Defendant why he had followed her. He replied that he had “already told you what’s
going to happen to you.” M. asked him why he had choked her. He replied, “[i]f I had
choked you you wouldn’t be talking.” When M. asked, “[i]s that what you want, to kill
me,” Defendant replied, “[i]f it’s possible[,] that’s how it’s going to be.”
               M. told Defendant that she no longer knew whether L. was his son or the
son of her ex-boyfriend. She said, “[y]ou told me that if L[.] was yours that you were


                                              4
going to love him much more.” He replied, “[w]hy are you telling that now?” M. said,
“several times we did it without protection.” Defendant replied, “[w]ell, yes, but I never
            [3]
(ejaculated)      inside of you.”
                  Later in the call, M. asked Defendant, “why did you do all that to me if you
knew that I was a minor when you did all that to me?” Defendant asked M. why she was
asking these questions now. She asked again, “why did you do it with me?” He
answered, “you provoked me.” M. asked how an 11 year old could provoke. In
response, Defendant asked M., “[y]ou don’t know how to provoke?”
                  M. told Defendant she had gone to church and told the pastor that, when
she was little, Defendant would force her to have oral sex with him. M. asked Defendant,
“[w]hy did you force me to do all that then?” Defendant said, “I didn’t force you” and
“[y]ou wanted to.” When M. mentioned she might tell M.C., Defendant said, “you
promised me that you were never going to tell her, that she would never know.” M.
asked Defendant why he treated her like a whore. He replied, “you act like you have no
self-respect.” She told Defendant she had never asked him to touch her, she was a little
girl and did not know, and he said to her, “[i]t’s nothing bad. You’re only going to suck
on it a little.” In response, Defendant said: “So what? You know how to do it well.”
Defendant later said: “I love you so fucking much, what you do hurts me, what I do to
you hurts me . . . even if I don’t feel it at the moment, but once I do it . . . I think about
what I do when I’m alone, about what I did.” (Ellipses in original.)
                  M. asked Defendant if he would meet her and talk in person. They agreed
to meet at a Carl’s Jr. restaurant near her school. Defendant said, “you’re going to have
the police there . . . to catch me at once.” M. denied it.




 3
   In the transcription and translation of the telephone conversation, parentheses indicate
“[n]ot a literal translation but best interpretation of a sentence.”

                                                5
                                                   IV.
                             The Police Interview of Defendant
                The police were indeed at the Carl’s Jr. restaurant and arrested Defendant
when he arrived. Rodriguez and his partner, Detective Ed Zaragoza, spoke to Defendant
at the police station. Defendant waived his rights under Miranda v. Arizona (1966) 384
U.S. 436 and agreed to talk. The interview was conducted in Spanish. The interview was
audio-recorded, the recording was transcribed and translated from Spanish to English,
and the transcription was received in evidence as exhibit No. 13.
                When asked if he was M.’s biological father, Defendant said he was her
stepfather but had raised her since she was two years old. He claimed her accusations
against him were pure lies.
                Rodriguez said he had listened to the entire telephone conversation between
Defendant and M. and the conversation had been recorded. Rodriguez asked Defendant
directly whether he ever had sexual relations with M. Defendant replied, “I’m not going
                                              4
to (deny it) . . . but I never forced her.”       (Parentheses & ellipsis in original.) Asked
when it started, Defendant said when M. was 11 or 12 years old. M. wanted things such
as cell phones, clothes, and shoes, and Defendant agreed to buy them for her if she would
touch his penis with her hand. Defendant and M. started having sexual relations later,
when she was 13 or 14 years old.
                Defendant said that starting when M. was 11 or 12 years old he would have
her orally copulate him. Rodriguez asked Defendant, “[h]ow many times did she touch it
and suck it?” Defendant said about once a week while M. was ages 11 to 14. When M.
orally copulated him, Defendant did not ejaculate into her mouth. Defendant admitted
that he started having sexual intercourse with M. about once a month starting when she
was age 14. They would have intercourse in hotels throughout Santa Ana and in their

 4
     Parentheses indicate “[n]ot a literal translation but best interpretation of a sentence.”

                                                     6
home. He would buy her things or pay her money in exchange. Defendant never
ejaculated inside of her. He admitted that at this time he would fondle and suck on her
vagina and that he treated M. like a wife. Defendant claimed he never forced her. The
sexual encounters ended when M. was 17 years old. Defendant told M. not to tell
anybody because if she did, he would be in trouble.


                                      DISCUSSION
                                             I.

                         Defendant Forfeited Any Direct Claim
                                of Prosecutorial Error.
              The sole basis for Defendant’s challenge to the judgment is a statement
made by the prosecutor in closing argument to explain the unanimity rule as applied to
counts 1, 2, and 3. The prosecutor argued as follows, with the challenged portion in
italics:
              “. . . The first count is oral copulation. This is M[.] putting her mouth on
the defendant’s penis. And the date range is from the time that she turned 11 until the
day before her 14th birthday. In order to determine whether or not I have proved that
crime, look at CALCRIM [No.] 1080.
              “The second count is M[.] fondling the defendant’s penis. This is from
11 years old to the day before her 14th birthday. There are two charges for this crime and
the CALCRIM is [No.] 1110. And, as you know, the evidence showed that this didn’t
happen just twice and the oral copulation didn’t happen just once, we have evidence that
it happened approximately 25 times for the masturbation, which is counts 2 and 3 and we
have approximately 25 times for the oral copulation.
              “Now, when I ask you for guilty verdicts on those crimes, you all just have
to decide for count 1, did it happen once, just once? If you all agree it happened just
once, we’re good. Same thing for counts 2 and 3, do you all agree it happened at least


                                             7
twice? We have evidence of 25; but if you all agree on at least two of these, we’re good,
guilty.” (Italics added.)
              Defendant’s trial counsel did not object to the challenged argument.
Failure to object or request an admonition leads to forfeiture of a claim of prosecutorial
error unless an objection or request for admonition would have been futile. (People v.
Panah (2005) 35 Cal.4th 395, 462; People v. Young (2005) 34 Cal.4th 1149, 1188.)
Nothing in the record suggests the trial court would not have entertained an objection if
made or admonished the jury if requested. Defendant concedes his trial counsel’s failure
to object forfeited his direct claim of prosecutorial error.


                                              II.
                    There Was No Ineffective Assistance of Counsel.
              Defendant contends his trial counsel was ineffective for not objecting to the
prosecutor’s closing argument. To prevail on a claim of ineffective assistance of counsel,
Defendant must prove both (1) his attorney’s representation was deficient in that it fell
below an objective standard of reasonableness under prevailing professional standards;
and (2) his attorney’s deficient representation subjected him to prejudice. (Strickland v.
Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.)
Prejudice means a “reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” (Strickland v. Washington,
supra, at p. 694.) A reasonable probability means a “probability sufficient to undermine
confidence in the outcome.” (Ibid.)
              In order to address Defendant’s claim of ineffective assistance of counsel
we first consider the law regarding proof of multiple sex crimes and the unanimity rule.
In cases charging multiple sex crimes over a specific period of time, the prosecution can
meet its burden of proof with generic testimony. (People v. Jones (1990) 51 Cal.3d 294,
314, 315-316 (Jones).) In Jones, each of the six counts at issue charged one event in a

                                               8
different two-month period. (Id. at p. 303.) The victim of these counts testified
regarding the molestations. (Id. at p. 301.)
              In Jones, the California Supreme Court held the victim’s generic testimony
constituted substantial evidence supporting those six convictions: “[I]n determining the
sufficiency of generic testimony, we must focus on factors other than the youth of the
victim/witness. Does the victim’s failure to specify precise date, time, place or
circumstance render generic testimony insufficient? Clearly not. As many of the cases
make clear, the particular details surrounding a child molestation charge are not elements
of the offense and are unnecessary to sustain a conviction. [Citations.] [¶] The victim,
of course, must describe the kind of act or acts committed with sufficient specificity, both
to assure that unlawful conduct indeed has occurred and to differentiate between the
various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or
sodomy). Moreover, the victim must describe the number of acts committed with
sufficient certainty to support each of the counts alleged in the information or indictment
(e.g., ‘twice a month’ or ‘every time we went camping’). Finally, the victim must be able
to describe the general time period in which these acts occurred (e.g., ‘the summer before
my fourth grade,’ or ‘during each Sunday morning after he came to live with us’), to
assure the acts were committed within the applicable limitation period. Additional details
regarding the time, place or circumstance of the various assaults may assist in assessing
the credibility or substantiality of the victim’s testimony, but are not essential to sustain a
conviction.” (Jones, supra, 51 Cal.3d at pp. 315-316.)
              When a defendant is charged with multiple sex offenses over a given period
of time, a unanimity instruction is required if the evidence indicates the jurors might
disagree as to the particular act or acts the defendant committed. (Jones, supra, 51
Cal.3d at pp. 321-322.) “In a case in which the evidence indicates the jurors might
disagree as to the particular act defendant committed, the standard unanimity instruction
should be given. [Citation.] But when there is no reasonable likelihood of juror

                                               9
disagreement as to particular acts, and the only question is whether or not the defendant
in fact committed all of them, the jury should be given a modified unanimity instruction
which, in addition to allowing a conviction if the jurors unanimously agree on specific
acts, also allows a conviction if the jury unanimously agrees the defendant committed all
the acts described by the victim.” (Ibid., italics added.)
              In this case, the trial court gave CALCRIM No. 3501 (Unanimity: When
Generic Testimony of Offense Presented), which encompasses both the standard
unanimity instruction and the modified unanimity instruction described in Jones.
CALCRIM No. 3501 gives the jury alternatives for finding the defendant guilty. The
first is the standard unanimity rule: “1. You all agree that the People have proved that the
defendant committed at least one of these acts and you all agree on which act (he/she)
committed [for each offense]” (CALCRIM No. 3501.) The alternative is the modified
unanimity rule: “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].” (Ibid.)
              The trial court instructed the jury with CALCRIM No. 3501 modified to
read as follows:
              “Regarding counts 1, 2, 3, 4[,] 5 and/or 6, the People have presented
evidence of more than one act to prove that the defendant committed these offenses. On
all of these counts you must not find the defendant guilty unless, one, 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, two, 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.”
              Defendant argues the prosecutor misstated the standard unanimity rule by
telling the jury it could find him guilty if it agreed on at least one act (or two acts)

                                               10
without telling the jury it had to be unanimous as to which act (or two acts) occurred.
The prosecutor was correct that the jury only had to agree on at least one act or two acts
but erred by not adding that the jury also had to agree unanimously on which act or acts
occurred. It is error for the prosecutor to misstate the law during argument. (People v.
Huggins (2006) 38 Cal.4th 175, 253, fn. 21; People v. Otero (2012) 210 Cal.App.4th 865,
870; People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266.) Defendant’s trial
                                                                                   5
counsel therefore had legal ground for objecting to the prosecutor’s argument.
              But to the extent his counsel’s performance was deficient for not objecting,
Defendant suffered no prejudice. First and foremost, this was the quintessential case for
the modified unanimity instruction (alternative 2 of CALCRIM No. 3501) in that the only
question was whether Defendant committed all of the acts alleged or none of them.
“[B]ecause credibility is usually the ‘true issue’ in these cases, ‘the jury either will
believe the child’s testimony that the consistent, repetitive pattern of acts occurred or
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].’” (Jones, supra, 51
Cal.3d at p. 322.)
              The prosecution presented generic evidence of consistent, repetitive acts by
Defendant of oral copulation and fondling while M. was between the ages of 11 and 14,
and of sexual intercourse while M. was between the ages of 14 and 17. At trial,
Defendant denied any wrongdoing. His trial counsel argued that it was contrary to
common sense that any abuse occurred given the family’s living situation and that M. had
lied in the past to get Defendant in trouble. Trial was an all-or-nothing proposition: The
jury either “‘believe[d] the [evidence] that the consistent, repetitive pattern of acts
 5
    We do not decide whether Defendant’s trial counsel might have had a “rational
tactical purpose” for not objecting. (People v. Lucas (1995) 12 Cal.4th 415, 442.)

                                              11
occurred or disbelieve[d] it.’” (Jones, supra, 51 Cal.3d at p. 322.) Thus, to convict
Defendant as charged, the jury would have unanimously agreed he committed all the acts
alleged to have occurred.
              The evidence that Defendant did commit all the acts alleged was extremely
strong. That evidence included Le’s stipulated testimony and the transcript of M.’s
telephone conversation with Defendant. Particularly damning was evidence of the police
interview in which Defendant admitted committing the alleged sex acts against M.
Rodriguez testified about the interview, and the transcript was received in evidence.
Defendant not only admitted the acts of manual and oral copulation and of sexual
intercourse, but his statements were consistent with what M. had told Le. Given this
evidence, we conclude, beyond a reasonable doubt, the jury convicted Defendant by
finding unanimously that he committed all the acts alleged and that he committed at least
the number of offenses charged. Thus, there was no reasonable probability the result of
the trial would have been different if Defendant’s trial counsel had objected to the
prosecutor’s misstatements about the standard unanimity rule.
              In addition, the prosecutor gave a correct statement of the standard
unanimity rule later in closing argument. The prosecutor stated: “[I]f you all agree that
there was at least one act of oral copulation, which we all know that there was more than
one, but if you all just agree on one, then you can sign[] the form on count 1. Same thing
on count 2 and count 3. You do all have to agree that there was at least one, and you
have to agree on the same one; but if you all do agree, you can sign those forms.” (Italics
added.) Defendant contends that statement “confused the issue” and “neither clarified
nor corrected the original mis-statement of the law.” We disagree. The latter statement
corrected the prior incorrect statement and had the effect of increasing to a near certainty
the likelihood the jury followed the trial court’s unanimity instruction.




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                               DISPOSITION
          The judgment is affirmed.




                                           FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.




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