Filed 10/14/14 P. v. Orozco CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,

v.
DANIEL ENRIQUE RIVERA OROZCO,
Defendant and Appellant. B252434
(Los Angeles County Super. Ct. No. VA123729)

APPEAL from a judgment of the Superi or Court of Los Angeles County, Roger Ito, Judge. Affirmed. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback II, Supervis ing Deputy Attorney General, and Robert C. Schneider, Deputy Attorney Genera l, for Plaintiff and Respondent.

________________ _____________2 Defendant and appella nt Daniel Enrique Rivera Oroz co was found guilty in counts 1, 2, and 4 of committing a lewd act upo n a child (Pen. Code, § 288, subd. (a)). 1 Brian D. was the victim in counts 1 and 2, and Dani el A. was the victim in count 4. The jury found true the allegations that the crimes i nvolved multiple victims (§ 667.61, subds. (a) and (b)), and that count 2 involved substan tial sexual conduct (§ 1203.66, subd. (a)(8)). 2 Defendant was sentenced to 45 years-to- life in prison, consis ting of consecutive terms of 15 years-to-life for ea ch of counts 1, 2, and 4. Defendant argues the trial court erred in denying his motion to dismiss, which was made on the basis of unreasonable preindictment delay. He further contends the trial
court abused its discretion by excluding testimony beneficial to his case, and erred by failing to instruct on unanim ity as to counts 1 and 2. We affirm the judgment.

FACTS 3

Prosecution

Defendant lived for 18 years with Blanca Flores, 4 the grandmother of Brian, Melissa, and Daniel. During that time, the children and their mothers visited the house regularly. Flores would sometimes le ave the children in defendant’s care.

1 All further statutory references are to the Penal Code, unless otherwise noted.

2 Defendant was found not guilty as to count 3, co mmitting a lewd act upon a child, Melissa B.

3 We recount the facts as to Melissa only insofar as they are relevant to defendant’s contentions.3 Brian (counts 1 and 2)

Brian is the son of Flores ’s daughter, Carolina T. He was born in September 1997, and was 15 years old at the time of the trial. When Brian was a ch ild, he and his mother lived in the front house of a duplex, while de fendant and Flores lived in the back unit. When Brian was about four or five years old, defendant would remove his clothing and watch pornography with Bria n. On three or four occasi ons, defendant placed Brian’s hand on his penis. Defendant also made Bria n orally copulate him three or four separate times. Brian was unable to distinguish the individual incidents in which these acts
occurred. He knew that on at least one o ccasion the touching took place in Flores’s living room, and on another it took place in her bedroom. In July 2002, when Brian was four years old, he and his mother were in bed watching TV. Brian got on top of his mother and tried to “hump” her in a manner that
alarmed her. He told her what defendant ha d done to him. She immediately called the police. Brian spoke with an officer that nigh t. He was interviewed again, also in July 2002, by Detective Rick Curiel. He told Detective Curiel wh at happened in the incidents
with defendant. Melissa is the daughter of Flores’s dau ghter, Blanca M. Melissa was born in July 1997, and was 15 years old at the time of the trial. Melissa testified that defendant showed pornography to her and her cousins, Brian and Daniel, when she was about five years old. On one occasion, she saw defend ant put his penis near Brian’s mouth. She tried to tell her mother, but he r mother would not listen.
Melissa remembered the inci dent as she grew up, but did not mention it to anyone until 2012, when her mother to ld her that Daniel had re membered things involving
defendant. Her mother then took her to speak with the po lice. Later, Melissa talked

4 Flores and her daughter share the same first name. For clarity, we refer to Flores by her last name, and to her daughter as Blanca.4 about what happened with Brian and Daniel, but the three agreed not to bring it up again because they did not lik e talking about it.

Daniel (count 4)

Daniel is the son of Flores’s daughter, D. A. He was born in April 1997, and was 16 years old at the time of the trial. After attending a high school class di scussing sexually transmitted diseases, Daniel noticed some white spots on his peni s, which caused him to remember something
defendant had done to him as a child. Dani el feared that defendant had given him a sexually transmitted disease. 5 He told his mother that de fendant had done something to him when he was younger. She took him to the police station the next day. Daniel recounted to police that defendant touched him inappropriately when he was four or five years old. Daniel recalled that he and de fendant were naked and that defendant had moved his penis around Daniel’s anus and then ejaculated in to a cup. Daniel did not understand what was happening and did not mention the incide nt to anyone because he did not know he was supposed to . The first time he talked to anyone about it was when
he told his mo ther in 2012. Daniel had “practically” forgotten about the incident until 2012 , when the health class jogged his memory of it. He had not heard of anything happening between
defendant and his cousins and had not spoken to them about it previously.

5 A medical examination established th at Daniel did not have a sexually transmitted disease.5 Defense

Investigations

Detective Curiel testified that he in terviewed Brian about the incidents with defendant in 2002. At one point, Brian said that defendant was in jail because defendant argued with Brian’s mother. Detective Gabriel Alpizar interviewed Br ian, Melissa, and Daniel in February 2012. Detective Alpizar testified that Brian was sometimes inconsistent about the details of the incidents with defendant, and that Meli ssa did not remember a lot of details of the
incident she witnessed. Daniel told Detec tive Alpizar that he did not see defendant’s penis. Dr. Bradley McAuliff testified as an expert on children’s memory and suggestibility. Dr. McAuliff tes tified that children may take cues from an interviewer or other adult, which may cause them to remember things that did not happen. This is more common in cases where the child is young and the interviewer is a person with authority. Dr. McAuliff reviewed the transcripts of the interviews with Brian, Melissa, and Daniel, and opined that the interviewers may have suggested to the children that certain events happened, when in fact they did not occur.

Rebuttal

Investigations

Detective Curiel testified that in 2002, Br ian told him the details of what happened in the incidents with defendant, which were cons istent with the allegations at trial. They spoke about oral copulation us ing age-appropriate language. Detective Curiel believed
that Brian understood the conversation. De tective Curiel did not interview Melissa or
Daniel in 2002.6 Detective Alpizar testified that in 2012, Brian was consistent about the details of the sexual abuse he described, and was inconsistent only as to minor details, such as in which room the incidents took place. Dani el told Detective Alpizar that he saw defendant’s penis before he put it in Daniel ’s anus, but not duri ng the act itself.

DISCUSSION

Pre-Filing Delay

No charges were filed against defenda nt in 2002 following Brian’s initial complaint of molestation. De fendant was charged in 2012 af ter Melissa and Daniel came forward as victims. At that time, corroboratin g evidence came to lig ht in connection with the sexual abuse of Brian, as Melissa claimed to have witne ssed one of the incidents. Defendant’s trial took place when the victims were all betwee n 15 and 16 years old. Defendant moved prior to tr ial to dismiss the case on th e grounds that the delay in prosecution violated his due process rights under the st ate and federal constitutions. 6 In his motion, defendant argued that the memori es of the victims, who were young at the time of the charged offenses, would have dimi nished or been tainted some 10 years later, making his case difficult to defend. At the hearing on the moti on to dismiss, the trial court noted that defendant had not alleged any actual prejudice in his motio n. Defense counsel argued that there was “kind of” a reference to it, and that the prosecu tion had agreed not to object to oral notice. Defense counsel argued prejudice was show n because the children were young at the time of the alleged incidents, they were s ubject to degradation of memory and adult influence over the years, and th at there were no adult witnesse s. He asserted that Brian’s
statements in 2002 differed in detail from his statements in 2012, and that the other

6 Defendant also asserted hi s right to a speedy trial under the Sixth Amendment in the motion, but does no t raise the issue here.7 children had been investigated in 2002, and no abuse was indicated. 7 The trial court denied the motion due to “an inadequate show ing of actual prejudice,” but afforded the prosecution the opportunity to respond. Th e prosecutor responded that there was no substantial change in what Br ian initially disclosed in 2002 and his statements in 2012. The only change was that th e two additional victims had come forward. The court reminded the parties that it did not yet know the facts of the case, and asked defense
counsel if Brian’s statements in 2002 diffe red from his statements in 2012. Defense
counsel stated that in 2002 Brian had mentioned that defendant was in trouble because he yelled at Brian’s mother, but that in 2012, he did not include this detail and his testimony seemed more “streamlined.” The prosecution responded that in 2002 Brian informed his
mother that defendant had placed his penis in Brian’s mouth and made him touch defendant’s penis, and in 2012, Brian allege d the exact same acts had occurred. The court reiterated its denial of the motion, stating, “I don’t find . . . any specific prejudice in this case other than generically and speculatively because the years have gone by, and the cases . . . say . . . that is not . . . prejudice . . . with [this] particular-type motion.” “The due process clauses of the Fifth and Fourteenth Amendm ents to the United States Constitution and article I, section 15 of the California Constitution protect a defendant from the prejudicial effects of lengthy, unjustified delay between the
commission of a crime and the defe ndant’s arrest and charging.” ( People v. Cowan (2010) 50 Cal.4th 401, 430 ( Cowan ).) A defendant who co mplains only of delay
between the crimes and his arrest “is ‘not with out recourse if the delay is unjustified and prejudicial. “[T]he right of due process prot ects a criminal defendant’s interest in fair adjudication by preventing unjustified dela ys that weaken the defense through the dimming of memories, the death or disappe arance of witnesses, and the loss or destruction of material phys ical evidence.” [Citation.] Accordingly, “[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may

7 The record does not support defense coun sel’s assertion that Melissa and Daniel were interviewed in the 2002 i nvestigation. Detective Curiel testified that he did not interview either child.8 constitute a denial of the right to a fair tria l and to due process of law under the state and federal Constitutions.” [Citation.]’” ( Ibid .) Federal due process protects a defendant from preaccusation and pretrial delays that cause “actual prejudice in presenting his defense” where the Government’s delay in bringing the indictment was “a deliberate device to gain an advantage over him.” ( U.S. v. Gouveia (1984) 467 U.S. 180, 192, citing
U.S. v. Lovasco (1977) 431 U.S. 783, 789-790; U.S. v. Marion (1971) 404 U.S. 307, 324.) We review a trial court’s ruling on a mo tion to dismiss for prejudicial prearrest delay for an abuse of discretion. ( Cowan , supra , 50 Cal.4th at p. 431.) In ruling on a motion to dismiss for prejudicial prearrest dela y, the trial court employs a three-part test. “‘“A defendant [must first] . . . demonstr ate prejudice arising from the delay. The prosecution may offer justification for the dela y, and the court . . . balances the harm to the defendant against the jus tification for the delay.” [Citation.]’ [Citation.] [¶] Prejudice may be shown by ‘“loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory at tributable to the delay.” [Citation.]’ [Citations.]” ( Cowan , supra , at p. 430.) “‘Even a minimal showing of prejudice may require dismissal if the proffered justifi cation for delay be unsubstantial.’” ( People v.
Hartman (1985) 170 Cal.App.3d 572, 582-583.) “Prejudice is a factual question to be determined by the trial court” and we defe r to any underlying factual findings if supported by substantial evidence. ( People v. Hill (1984) 37 Cal.3d 491, 499 ( Hill ), citing People v. Cave (1978) 81 Cal.App.3d 957, 965; see Cowan , supra , 50 Cal.4th at p. 431; see also Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 945.) If the
defendant fails to meet the burden of showing prejudice, there is no need to determine whether the delay was justified. ( Serna v. Superior Court (1985) 40 Cal.3d. 239, 249.)
Defendant relies on Hill
, supra , 37 Cal.3d 491, in which the delay was held to be prejudicial. In Hill , the defendant’s primary defense was mistaken identification. Prejudice in Hill was established because the victims were no longer able to positively identify the defendant. The Hill court noted that if the witnesses’ memories had been clearer, they might have been able to exonerate the defenda nt. Instead, their limited recall made adequate cross-examination impossible. ( Id . at p. 498.)9 The type of prejudice established in Hill is not present in this case. The victims were familiar with defendant from regular cont act with him, and were unfaltering in their identification of him. Moreover, the salient details of the incidents Brian described did not change between 2002 and 20 12. Brian consistently stated that defendant made him orally copulate defendant and touch defendan t’s penis. Additionally , the evidence shows
that neither Melissa nor Daniel had been inte rviewed in 2002, and their silence cannot be
taken as a statement that defendant did not se xually abuse them, as defendant urges. The legislature has acknowledged that it is not uncommon for children to delay reporting sexual abuse, in section 288, subdivision (a ), which permits prosecution of lewd acts upon children up until the victim has attained the age of 28. The ruling of the trial court is consistent with that legislative dete rmination, and more importantly, is amply supported by the record, which undermines de fendant’s speculative assertion that the children’s memories might have dete riorated or been influenced.

Exclusion of Testimony

Defendant requested to introduce testimony at trial that Blanca, Melissa’s mother, told the children to lie, for the purpose of showing the effect the statement had on the children. Defendant sought to introduce this evidence through the testimony of his brother-in-law, Egidio Cahuex. Cahuex told defense investigators that when he was visiting defendant in county jail, Flores told him that Blanca had to ld the children to lie about what happened. 8 Defense counsel stated that he intended to call Blanca to the
stand to ask her whether she made the stat ement. Assuming Blanca denied telling the children to lie, he planned to call Flores to impeach Blanca. Defense investigators had
asked Flores whether Blanca made the st atement, but she said she did not recall “anything like that.” Defense counsel assumed that Flores would tes tify that she did not

8 Defense counsel also subpoenaed Blanca ’s husband, Lorenz o, who he believed to have overheard Blanca telling the children to lie, but Lorenzo could not be located prior to trial.10 remember Blanca making the statement, or recall having a conver sation with Cahuex
about it. He would then call Cahuex to testif y as to Flores’s statement to impeach her. The trial court asked defense counsel multip le times if he had evidence that Flores was present when Blanca purported ly told the children to lie: “The Court: Was she present? Was Blan ca Flores present when [her daughter] Blanca [] made this stat ement to the children? “[Defense Counsel]: I’m assuming, but I don’t know for sure. I’ll tell you why. “The Court: Was she present? As an o ffer of proof, was [] Flores present when [her daughter] Blanca [] made this statement? “[Defense Counsel]: That’s what I believe, the answer is yes.
“The Court: So -- “[Defense Counsel]: It’s ambiguous . . . . Ultimately, defense counsel admitted, “So the bottom line is that there’s ambiguity as to how much was in the presence of Blanca Fl ores. As an officer of the court, that’s the best offer of proof I have.” He verified that he had not obtained a statement from any witness indicating that Flores was present wh en Blanca allegedly spoke to the children. The prosecution objected to admission of Cahuex’s testimony for
lack of foundation. The court ruled: “So no, it’s completely speculative . . . and what’s more, I am disinclined unless Flores, unless Blanca Flores , says I was physically present and I heard my daughter say ‘A,’ ‘B,’ and ‘C.’ “Unless that’s her testimony, that whole body of testimony is gonna be excluded under 352. It’s hearsay. There is no hearsay exception, and it’s more confusing, and it is not gonna help the jury at all with any kind of releva nt admissible testimony.” Defense counsel offered to bring Cahu ex, who was waiting outside, into the courtroom: “We can have him testify at the 402 hearing right now. It could clarify maybe but --” The court responded, “You’re speculating based on what Cahuex has told you . . . . There’s no basis for that, otherwise.”11 Defense counsel concluded, “It’s all I have right now. As an officer of the court,
that’s all I have. I’m tr ying to do my best.” The court reiterated that the testimony w ould be excluded because: “It’s highly speculative. It’s hearsay. It’s not admissible, okay.” Defendant argues that exclusion of the evidence violated his constitutional rights to confront witnesses and to due process. He asserts that Blanca’s statement urging the children to lie is not hearsay because it woul d be admitted for the purpose of showing the effect of the statement on the children, and not for the truth of the matter asserted.
Flores’s and Cahuex’s statements, although hearsay, could be properly admitted for impeachment purposes, as evid ence of a prior inconsistent statements. We do not agree that the trial court erred, because there wa s no foundational showing that Flores heard
Blanca tell the children to lie. Moreover, the proposed test imony was certainly subject to
exclusion under Evidence Code section 352, one of the theo ries mentioned by the court as a legal basis for exclusion.
We review the trial court’s order excl uding evidence for abuse of discretion. “‘[T]he court’s ruling will be upset only if there is a clear show ing of an abuse of discretion.’ [Citation.] ‘“The appropriate test for abuse of discretion is whether the trial
court exceeded the bounds of reason. When two or more inferenc es can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for
that of the trial court.” [Citation.]’ [Citation.]” ( Tudor Ranches, Inc. v. State Comp. Ins.
Fund (1998) 65 Cal.App.4th 1422, 1431.) If the exclusion of evidence is proper on any theory of law applicable to the case, the exclusion must be affirmed regardless of the basis for the trial court’s ruling. (See People v. Zapien (1993) 4 Cal.4th 929, 976 [a correct ruling given for the wrong reas on will not be distur bed on appeal].)
It is well settled that an out-of-court statement may be admitted over a hearsay objection “if a nonhearsay purpose for admitt ing the statement is identified, and the nonhearsay purpose is relevant to an issue in dispute. [Citations.]” ( People v. Turner (1994) 8 Cal.4th 137, 189, ov erruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Scalzi (1981) 126 Cal.App. 3d 901, 906-907 ( Scalzi ).)12 “‘[O]ne important category of nonhearsay evid ence – evidence of a declarant’s statement that is offered to prove that the statement im parted certain information to the hearer and that the hearer, believing such information to be true, acted in conform ity with that belief. The statement is not hearsay, since it is the h earer’s reaction to the statement that is the relevant fact sought to be pr oved, not the truth of the matter asserted in the statement.’ [Citation.]” ( Scalzi
, supra , at p. 907.) However, the mere assertion of a nonhea rsay purpose does not end the analysis. “[T]he testimony of a witness co ncerning a particular matter is inadmissible unless he [or she] has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.” (Evid. Code, § 702, subd. (a).) “‘In a hearsay situation, the declarant is, of course, a witness, and [is not exempted from] . . . the requirement of firsthand knowledge.’ [Citations.]” ( People v. Valencia (2006) 146 Cal.App. 4th 92, 103.) “The rationale for requiring a hearsay declaran t to have personal knowledge when the
declarant’s statement is admitted for its truth is identical to the rationale for requiring a witness to have personal know ledge of the subject matter of the witness’s testimony. In the absence of personal knowledge, a witness’ s testimony or a declarant’s statement is no better than rank hearsay or, even worse, pure speculation. The admission of a hearsay statement not based on personal knowledg e puts the factfinder in the position of determining the truth of a statement without knowledge of its source and without any means of evaluating the reliability of the sour ce of the information . . . . [T]he personal knowledge requirement applicable to witn esses is equally applicable to hearsay declarants.” ( Id . at pp. 103-104.) The prosecutor objected to admission of Cahuex’s testimony for lack of foundation, and, despite valiant efforts, defe nse counsel was unable to make an offer of proof that Flores was present when Blanca purportedly spoke to the children. As described by the trial court, it may have been the case that Flores was simply “musing
about the nature of the case.” The trial court did not abuse its discretion in excluding the evidence as mere speculati on that was not based on Fl ores’s personal knowledge.13 We are not persuaded othe rwise by defendant’s arguments that the trial court erroneously ignored a request he made for a hearing under Evidence Code section 402. Defendant did not expressly re quest an Evidence Code section 402 hearing. In the hearing he stated only, “We can have him testify at the [Evidence Code section] 402 hearing right now. It could clarify maybe but --” When the court responded, “You’re speculating based on what Cahuex has told you . . . . There’ s no basis for that . . . .” Counsel did not further pursue th e matter, stating only, “It’s all I have right now. As an officer of the court, that’s all I have. I’m trying to do my best.” Cahuex was present and waiting just outside the courtroom. If defens e counsel believed Cahuex would state that Flores told him she was pr esent when Blanca made her statement, he could have confirmed his belief with Cahuex, pressed for a hearing, and made a definitive offer of proof. Instead, he declined to pursue the matter, and essen tially admitted that Cahuex’s testimony would not establish that there was a proper foundatio n for Flores’s statement to
him.
The trial court also mentione d Evidence Code section 35 2 as a basis for exclusion of the proposed testimony. Given the highly convoluted nature of the proposed evidence, and the multiple levels of st atements leading to the ultimat e statement in dispute, the court could reasonably conclude the probative value of Blanca’s purported statement to the children was substantially outweighed the probability that proof would “necessitate undue consumption of time” and create undue prejudice by confusing the issues or misleading the jury. (Evid. Code, § 352.)

Failure to Give Unan imity Instruction

Defendant contends that th e trial court committed reversib le error by failing to sua sponte instruct the jury on unani mity with respect to counts 1 and 2, relating to Brian. In count 1, defendant was char ged with committing a violati on of section 288, subdivision (a), between the dates of July 1, 2001, and July 19, 2002. In count 2, defendant was charged with committing another violatio n of section 288, subdivision (a), between the14 dates of September 21, 2001, and September 20, 2003. In closing argument, the prosecution made clear to th e jury that count 1 charged oral copulation and count 2 charged the touching of Brian’s hand to defendant’s penis. Defendant argues that this di stinction was insufficient to excuse the omission of a unanimity instruction, because Brian testified that both ac ts occurred multiple times, giving the jury separate factual bases to convi ct in each count. Specifically, defendant argues that, as to count 1, the jury may have convicted defendant based on the act witnessed by Melissa, or upon one of the other incidents alleged. As to count 2, some jurors may have convicted defendant based on an act in the bedroom, whereas others may
have convicted him based on an act in the liv ing room. These argumen ts lack merit, as there was no meaningful distinction between the acts that Brian described that would form a reasonable basis for the jury to dis tinguish between them, and indeed, defendant offered identical defenses to all acts alleged.
Under both the state and federal constitu tions, a jury verdict in a criminal case must be unanimous. ( People v. Russo (2001) 25 Cal.4th 1124, 1132.) In addition, the jury must unanimousl y agree that the defendant is guilty of a specific crime. ( Ibid .) Therefore, “when the eviden ce suggests more than one di screte crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.” ( Ibid .) In the absence of an election, a unanimity instruction is required in order “‘to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.]” ( Ibid .) Where the instruction is warrant ed, the trial court must give the instruction sua sponte. ( People v. Riel (2000) 22 Cal.4th 1153, 1199.) We review independently whether failure to give a unanimity instruction was error. ( People v. Hernandez (2013) 217 Cal.App.4th 559, 568.) “‘[W]hen there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is wh ether or not the defendant in fact committed all of them, the jury should be given a m odified unanimity instruction wh ich, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if15 the jury unanimously agrees the defendant committed all the acts described by the victim.’ [Citation.]” People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1589 ( Arevalo-Iraheta ).)
The facts and manner in which the ca se was prosecuted indicate that the prosecutor’s intent was for the ju ry to agree that all of the act s testified to o ccurred, as the acts themselves were indistinguishable. That being the case, the trial court erred in failing to instruct the jury that it could convic t if it unanimously agreed that any one or all of the acts occurred in each count. ( Arevalo-Iraheta
, supra , 193 Cal.App.4th at p. 1589.) Having concluded that the trial court erre d, we consider whether defendant was prejudiced by the error. “There is a split of authority on the pr oper standard for reviewing prejudice when the trial court fails to give a unanimity instruction.” ( People v. Vargas (2001) 91 Cal.App.4th 506, 561 ( Vargas ).) Some appellate cases hold that the failure to instruct on unanimity is of constitutional dimensi on and apply the test enunciated in Chapman v. California (1967) 386 U.S. 18, 24 ( Chapman ), requiring reversal unless the error is harmless beyond a reasonable doubt. (See, e.g., People v. Melhado (1998) 60 Cal.App.4th 1529, 1536.) Othe r cases apply the test from People v. Watson (1956) 46 Cal.2d 818, 836 ( Watson ), and hold that a conviction wi ll be overturned only if “‘it is reasonably probable that a result more favorab le to the appealing pa rty would have been
reached in the absence of the error.’” ( Vargas , supra , at p. 562, citing Watson, supra, at p. 836.) Here, we need not decide which standard applies, because the error is harmless under either standard. In this case, ther e was no meaningful basis for distinguishing amongst the three or four incidents of oral copulation (count 1) or the three or four incidents of sexual touching (count 2), so de fendant cannot have suffe red prejudice. As to count 1, it is irrelevant whether the jury believed Me lissa’s testimony that she witnessed defendant placing his penis close to Brian’s mouth. Melissa’s observation was not tied to a specific incident, and thus would have been deemed credible or not credible
as to all incidents. As to count 2, the single detail of whet her a specific incident occurred16 in the living room or the bedr oom is irrelevant. Brian te stified that he was sexually molested by defendant in each of the rooms on at least one occasion. His memories of which room the acts took place in were not attached to specific incidences of sexual touching, and woul d not influence a jury’s decision as to Brian’s credibility or lack thereof. Regardless of which room the speci fic acts took place in, Brian and defendant were in Flores’s house without other adults pr esent. Brian was a young child in the care of defendant, who had a position of authority over him. Ther e is nothing about being in
one of the rooms rather than the other that would render the incident more or less believable. To convict on either count, a re asonable jury necessarily would have to find that defendant committed all the acts in questi on. There is simply no possibility that the
verdict would have been different if the jury had been instructed on unanimity.
Defendant’s contention fails.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

MOSK, Acting P. J. GOODMAN, J. *

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