Filed 10/14/14 P. v. Titus CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058156

v.                                                                       (Super.Ct.No. SICRF1152893)

MARVIN DOUGLAS TITUS,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Inyo County. Burt Pines, Judge. (Retired

judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6

of the Cal. Const.) Affirmed.

         Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Miller,

Deputy Attorneys General, for Plaintiff and Respondent.



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                                               I

                                     INTRODUCTION1

       Defendant Marvin Douglas Titus was originally charged with 11 sexual crimes

involving three girls. A jury convicted defendant of eight counts of child molestation:

counts 2, 6, and 11, forcible lewd conduct (§ 288, subd. (b)(1)); counts 3 and 8,

misdemeanor sexual battery (§ 243.4, subd. (e)(1)); counts 4 and 9, misdemeanor child

annoyance (§ 647.6, subd. (a)(1)); and count 7, continuous child sexual abuse. (§ 288.5.)

The jury also found true that counts 2, 6, 7, and 11 were committed against two or more

victims. (§ 667.61, subd. (e)(4).) The jury did not convict defendant on counts 1, 5, and

10 for violations of section 288, subdivision (a).

       The court dismissed counts 1, 5, 6, and 10 as duplicative. The court sentenced

defendant to two consecutive indeterminate sentences of 15 years to life.

       On appeal, defendant contends he was denied due process during plea

negotiations; that the court failed to give a unanimity instruction and improperly gave

CALCRIM Nos. 1110, 1111, and 1120; and the jury received a copy of the criminal

information which contained prejudicial information. We reject these contentions and

affirm the judgment.




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



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                                              II

                   FACTUAL AND PROCEDURAL BACKGROUND

       The charges against defendant involved his conduct between 2002 and 2006 with

C.M., the daughter of one girlfriend, and his conduct between 2008 and 2011 with K.A.,

the daughter of another girlfriend, and K.A.’s playmate, K.G. The conduct with K.A. and

K.G. occurred one day in August or September 2011 while defendant drove the two girls

around in his truck looking for a lost dog.

A. C.M. (Count 11)

       C.S. dated defendant and lived with him in Big Pine between 2001 or 2002 and

2006, together with her daughter, C.M., born in 1990. C.M. became uncomfortable when

defendant began to make inappropriate jokes and comments about C.M.’s breasts and

oral copulation. Defendant told C.M. he was masturbating while watching her from

cameras he had placed in her bedroom and shower although she could not find any

cameras. Defendant would not quit slapping C.M. and her friends on their buttocks even

though they asked him to stop.

       One night in 2002 or 2003, when C.M. was 12 years old, defendant crawled into

bed with her while she pretended to sleep. He unsnapped her bra and touched her breasts.

He asked to suck on her breasts and if she would touch his penis. C.M. left saying she

had to use the bathroom. When C.M. was in the eighth grade—2003 or 2004—defendant

offered to buy her new school clothes if she lifted her shirt to show him her breasts.

       C.M. told a friend, Sarah, about defendant touching her breasts. C.M. cried and

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asked Sarah not to tell anyone. Sarah said defendant had not misbehaved with her.

         C.S testified she had heard defendant use vulgar sexual terms around C.M. C.S.

had seen defendant tickle her daughter on his lap and slap her friends’ buttocks. Early

one morning in 2005, C.S. found defendant sleeping in a bunk bed with C.M. C.M. woke

up when her mother began screaming. After this incident, C.S. and C.M. talked to an

Inyo deputy sheriff but they did not discuss other inappropriate conduct by defendant.

         C.M. made a “pretext” telephone call to defendant. Defendant claimed he did not

remember making comments about oral copulation or spying on C.M. with cameras but

he contended he was not serious. Defendant told C.M to forget it all as “crap.” He

admitted C.S. had confronted him about looking at and touching C.M.’s breasts.

B. K.G. (Counts 2, 3, and 4) and K.A. (Counts 7, 8, and 9)

         Between 2008 and 2011, defendant lived with his girlfriend, S.K., and her

daughter, K.A., born in 2002. K.A.’s friend K.G., born in 2002, often played at their

house.

         One day in August or September 2011, when defendant drove the two girls in his

truck, looking for a lost dog, defendant touched K.G. on her thigh. She testified she told

him to stop and pulled away. He responded by tugging on her shirt while still touching

her thigh and not stopping until she hit him. In a recorded interview, K.G. said defendant

had touched her in three places, her shirt, leg, and crotch. Although she told her parents

defendant had “tickled” her, she had misspoken. She often spent the weekend at K.A.’s

house and defendant would “scare” or “spank” her although she told him to stop.

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       On September 3, 2011, K.G. told her parents she did not want to visit K.A.’s

house because of defendant. K.A. told K.G.’s mother that defendant “constantly

touche[d] her privates.” K.A. also told K.G.’s father that she had told her own mother

about defendant touching her. K.G.’s stepmother testified that K.A. seemed shocked by

K.G.’s accusations against defendant. Another adult spoke to K.A. about defendant

touching her “private parts” and reported the conversation to law enforcement.

       K.G.’s parents immediately confronted defendant who denied touching K.G.

inappropriately although he admitted touching her in the truck. Defendant also admitted

an earlier incident when he touched a girl’s breast in his sleep (referring to C.M.). When

S.K. came to pick up K.A., she was angry and yelling at her daughter.

       K.A. testified that, during the search for the dog, she sat on defendant’s lap and

K.G. sat in the passenger’s seat of the truck. Defendant “tickled” K.G.’s knee and K.A.

thought he was just “messing around.” K.A. was taking medication that may have

affected her memory. K.A. did not remember defendant ever touching her

inappropriately or telling anyone he had. K.A. liked defendant and had lived with him

for a long time.

       In an earlier recorded interview, K.A. had stated she did not like defendant

because he had touched her and K.G. in “bad spots” between the legs and the touching

occurred in the second, third, and fourth grades. During the truck ride, defendant touched




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both girls and he was too strong for them to resist.

       An Inyo County Deputy Sheriff, Christopher Walston, gave defendant a Miranda2

advisement and interviewed him. Defendant denied any inappropriate touching. He

claimed he had let K.A. steer the truck and he had tickled K.G. playfully until she asked

him to stop.

       Holly DeVincent, a social worker, interviewed K.A.3 K.A. said that defendant had

touched K.G.’s genitals and K.A. tried to move his hand but he was too strong.

Defendant also touched K.A.’s legs. Another time he had touched her genitals both over

and under her clothes while they were sitting on a living room couch.

       S.K., testified that K.A. habitually masturbated frequently enough to cause dry

skin and requiring cream. After they searched for the lost dog, defendant and the two

girls were laughing when they returned and asked for ice cream. S.K. believed defendant

and did not trust law enforcement. Defendant’s son testified that defendant told him

about K.A. masturbating. Defendant would lead her into her room and tell her to “rub

herself raw.”

C. Defense Evidence

       Defendant’s daughter testified defendant did not behave inappropriately with

       2   Miranda v. Arizona (1966) 384 U.S. 436.

       3  Throughout her testimony, DeVincent incorrectly uses the term, “vagina,”
which is an internal organ, to describe female external genitalia. In this opinion, we will
use the terms “genitals” in place of “vagina.”



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young girls and C.M. was not visibly uncomfortable with him. Defendant’s daughter’s

friends testified he did not speak or act inappropriately. Another woman testified she

knew defendant and had lived with him and he never misbehaved with children.

       Defendant denied he ever touched C.M.’s breasts or otherwise touched her

sexually. They played a slapping game until she did not want to anymore. Twice he lay

on her bed on top of the covers to talk to her and comfort her before she fell asleep.

Defendant denied making comments about oral copulation, bedroom cameras, or offers

of school clothes in exchange for looking at C.M.’s breasts. He broke up with her mother

because of lies and deceit.

       Defendant played with K.A. by pretending to spank her over his knee. He never

touched K.A. or K.G. sexually. One time only, he applied cream on K.A. after she had

masturbated until she was raw. He disciplined her for masturbating publicly and told her

she should stay in her bedroom.

       Defendant testified that he let K.A. sit in front of him and steer the truck while

K.G. sat in the back. He touched K.G.’s knee to get her attention when he asked a

question about the lost dog. K.A. accidentally stepped on his crotch and he warned her to

be careful of his “pee-pee.” The girls laughed and played a game—“Get Marvin” —

involving tickling. K.G. said to watch out for her “boobs.” Defendant said she had none




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and tugged on her turtleneck shirt.4 The tickling was “just playing” and only lasted for a

minute until K.A. asked it to stop.

                                              III

                                 PLEA NEGOTIOATIONS

       During pretrial settlement negotiations, the court asked the prosecutor to explain

“what is the maximum the defendant could serve if he’s convicted on all counts if all the

allegations are found to be true.” The prosecutor responded, “if he’s convicted of all

counts, all counts and all allegations . . . he would be subject to the term of life

imprisonment.” The court then asked, “With what minimum period?” The prosecutor

said it would be imprisonment of 15 years to life. The prosecutor then indicated he was

willing to accept a plea that did not involve life imprisonment, specifically a maximum

term of 16 years with good conduct credit. After defendant was convicted, the court

imposed a final sentence of two consecutive sentences of 15 years to life, a total of 30

years to life. There were no objections to the final sentence.

       Defendant argues his constitutional rights—due process rights under the

Fourteenth Amendment and the right to effective assistance of counsel under the Sixth

Amendment—were violated because he was not correctly advised that the possible

maximum sentence was greater than 15 years to life. He contends, had he been correctly

informed, he would have accepted a plea bargain rather than risk trial. We conclude

       4   There was rebuttal evidence that K.G. never wore turtlenecks.



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defendant was not advised wrongly and there is no evidence that defendant would have

accepted a plea bargain.

       As the record demonstrates, the prosecutor did not say defendant’s maximum

sentence was 15 years to life. Rather that term was described as the minimum sentence.

The prosecutor was correct that, if defendant was convicted as charged of sex offenses

against more than one victim, he was subject to a mandatory life sentence with a

minimum term of at least 15 years. (§ 667.61, subd. (b); People v. Wutzke (2002) 28

Cal.4th 923, 930.) Notably, the prosecutor did not say defendant was subject to a single

term of life imprisonment. The factual predicate of defendant’s argument—that he was

misadvised—simply does not exist. Therefore, he cannot claim a due process violation

or ineffective assistance of counsel.

       Notwithstanding the foregoing, defendant also cannot point to any evidence in the

record that he would have pleaded guilty in exchange for a lesser sentence. (People v.

Miralrio (2008) 147 Cal.App.4th 448, 459-463, [disagreeing that the People have the

burden of proving the error was harmless beyond a reasonable doubt and rejecting People

v. Goodwillie (2007) 167 Cal.App.4th 695].) “In determining whether a defendant, with

effective assistance, would have accepted the offer, pertinent factors to be considered

include: whether counsel actually and accurately communicated the offer to the

defendant; the advice, if any, given by counsel; the disparity between the terms of the

proposed plea bargain and the probable consequences of proceeding to trial, as viewed at

the time of the offer; and whether the defendant indicated he or she was amenable to

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negotiating a plea bargain. In this context, a defendant’s self-serving statement—after

trial, conviction, and sentence—that with competent advice he or she would have

accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s

burden of proof as to prejudice, and must be corroborated independently by objective

evidence. A contrary holding would lead to an unchecked flow of easily fabricated

claims.” (In re Alvernaz (1992) 2 Cal.4th 924, 938.)

       Here defendant steadfastly maintained his innocence in his testimony at trial and

in the 54-page letter he wrote to the court before sentencing. Defendant rejected the offer

to plead guilty to a single count of section 288.5 and a sentence of 16 years with good

time credit. His belated claim that he would have accepted a plea if he had not been

wrongly advised is wholly uncorroborated independently by any objective evidence.

Defendant has not met his burden of proof to show prejudice. (In re Alvernaz, supra, 2

Cal.4th at p. 938.)

                                             IV

                                INSTRUCTIONAL ERROR

A. Unanimity Instruction

       The court gave the jury a unanimity instruction, CALCRIM No. 3500 on counts 5,

6, 8, and 9 involving K.A. The court did not give a unanimity instruction on the four

counts (1-4) involving K.G. and the two counts (10 and 11) involving C.M. The court

instructed the jury with CALCRIM No. 3515: “Each of the counts charged in this case is

a separate crime. You must consider each count separately and return a separate verdict

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for each one.” The court also instructed the jury based on CALCRIM No. 3550: “Your

verdict on each count and any special findings must be unanimous. This means that, to

return a verdict, all of you must agree to it.”

       Defendant contends the court erred by not giving CALCRIM No. 3500 on the

counts involving K.G. and C.M. because there was evidence of multiple acts of abuse. In

particular, defendant molested K.G. in the truck and also spanked her at K.A.’s home.

Defendant touched C.M.’s breast in bed; additionally, he slapped her on the buttocks and

tickled her on his lap.

       We conduct an independent review of instructional error. (People v. Waidla

(2000) 22 Cal.4th 690, 733.) In People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574,

1588-1589, this court said: “A criminal defendant is entitled to a verdict in which all 12

jurors concur as a matter of due process under the state and federal Constitutions.

[Citation.] In any case in which the evidence would permit jurors to find the defendant

guilty of a crime based on two or more discrete acts, either the prosecutor must elect

among the alternatives or the court must require the jury to agree on the same criminal

act. [Citation.] Where it is warranted, the court must give the instruction sua sponte.

[Citation.] The omission of a unanimity instruction is reversible error if, without it, some

jurors may have believed the defendant guilty based on one act, while others may have

believed him guilty based on another. [Citation.]”

       In this case, the jury was properly instructed with CALCRIM Nos. 3515 and 3550

on the need for unanimity on all counts. The prosecutor clearly elected the acts on which

                                              11
the charges were based. With regard to K.G., the prosecutor focused the questioning and

argument entirely on the incidents in the truck, not the collateral evidence about

spanking. With regard to C.M., count 11 was clearly based solely on defendant touching

her breast in bed, not on him slapping her buttocks. The jurors could not have disagreed

about the acts defendants committed based on the evidence at trial. (People v. Napoles

(2002) 104 Cal.App.4th 108, 120; People v. Matute (2002) 103 Cal.App.4th 1437, 1449-

1450.)

         Any error in not giving CALCRIM No. 3500 on the charges involving K.G. and

C.M. was harmless based on any standard. (People v. Napoles, supra, 104 Cal.App.4th at

p. 119 and fn. 8.) The other instructions given by the trial court—CALCRIM Nos. 3515

and 3550—cured any deficiency caused by not giving CALCRIM No. 3500. (People v.

Howard (1992) 1 Cal.4th 1132, 1172; People v. Wolfe (2003) 114 Cal.App.4th 177, 187;

People v. Dieguez (2001) 89 Cal.App.4th 266, 277.) Again, there was no reasonable

likelihood of juror disagreement about the acts defendant committed. (Napoles, at p.

120.) It is also undeniable that the jury must have decided defendant’s protestations of

innocence were not credible. (People v. Jones (1990) 51 Cal.3d 294, 332.)

B. CALCRIM Nos. 1110, 1111, and 1120

         The court used the standard jury instructions regarding lewd or lascivious act of a

child under 14 years (CALCRIM No. 1110); force or fear (CALCRIM No. 1111); and

continuous sexual abuse (CALCRIM No. 1120). Defendant contends the instructions are




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confusing because of they use language negating the element of section 288 that

defendant touch with a sexual intent.

       Defendant forfeited this claim by not asserting it below. (People v. Lee (2011) 51

Cal.4th 620, 638.) In any event, we disagree on the merits. Actual arousal of defendant’s

lust, passion, or desire was not an element of defendant’s offenses. (People v. Bronson

(1924) 69 Cal.App. 83, 86; People v. McCurdy (1923) 60 Cal.App. 499, 502-503.)

Section 288 only requires there be a sexual intent—not that the intended result actually be

accomplished. The three instructions comport with the applicable law.

                                             V

                           THE CRIMINAL INFORMATION

       Defendant lastly objects to the jury receiving a copy of the criminal information

that states defendant would be subject to registration as a sex offender and to an AIDS

test, that refers to a “Suspected Child Abuse Report,” and that describes the charges as

serious and violent. That argument fails because the jury received a redacted copy of the

criminal information that omits the material defendant has identified as prejudicial.




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                                          VI

                                    DISPOSITION

      No error occurred during the plea negotiations and the court properly instructed

the jury. We affirm the judgment.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                             CODRINGTON
                                                                                         J.

We concur:


RAMIREZ
                      P. J.


McKINSTER
                         J.




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