Filed 11/9/15 P. v. Linares CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

MARVIN LINARES,

Defendant and Appellant.

 B257600

 (Los Angeles County

 Super. Ct. No. BA415801)

APPEAL from a judgment of the Superior Court of Los Angeles County, Laura F. 

Priver, Judge. Affirmed.

Nancy L. Tetreault, 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, Senior Assistant Attorney General, Yun K. Lee and Nathan 

Guttman, Deputy Attorneys General, for Plaintiff and Respondent.

_____________
2

Marvin Linares was convicted by a jury on multiple counts of lewd conduct with a 

child under 14 years old, one count of sexual intercourse or sodomy with a child 10 years 

old or younger and one count of continuous sexual abuse of a child under 14 years old.

On appeal Linares contends ambiguous jury instructions improperly permitted the jury to 

convict him of continuous sexual abuse based on the same conduct at issue in other 

counts. He also contends the court erred in failing to give a unanimity instruction in 

connection with the sexual intercourse count. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The Amended Information

Linares was charged in an amended information with two counts of committing a 

lewd act on his daughter Emily, a child under 14 years old, on or between November 5, 

2009 and November 4, 2011 (Pen. Code, § 288, subd. (a))

1

(counts 1 & 2); one count of 

sexual intercourse or sodomy on a child 10 years old or younger on or between 

November 5, 2009 and November 4, 2011 (§ 288.7, subd. (a))(count 3); one count of 

continuous sexual abuse of a child under 14 years old during the period November 5, 

2011 through July 14, 2013 (§ 288.5, subd. (a)) (count 4); and two counts of committing 

a lewd act on A.F., a child under 14 years old, on or between October 5, 2000 and 

October 4, 2001 (§ 288, subd. (a)) (counts 6 & 7).

2

As to the lewd act counts it was 

specially alleged that Linares had committed a sexual offense against more than one 

victim within the meaning of section 667.61, subdivisions (b), (c) and (e). As to the 

counts involving A.F. it was specially alleged that A.F. was under 18 years old at the time 

of the offense and the prosecution was commenced prior to her 28th birthday (former 

§ 801.1, subd. (a), Stats. 2007, ch. 579, § 40, p. 4845.)

3

 Linares pleaded not guilty and 

denied the special allegations. 

 

1 Statutory references are to this code. 

2 The amended information did not include a count 5. 

3 Former section 801.1, subdivision (a), authorized the commencement of a 

prosecution for certain enumerated sex crimes with a child victim at any time prior to the 
3

2. The Trial

Emily was born in November 2001. Emily testified Linares began sexually 

molesting her when she was eight or nine years old. At first he removed her clothing 

from the waist down and touched her bare genitals with his hands. His behavior soon 

escalated; and, more than once when Emily was eight or nine years old, Linares inserted 

his penis “inside her.” Emily specifically recalled one occasion when she fell asleep on a 

pile of blankets in her grandmother’s room and awoke to find Linares on top of her 

moving his penis “in and out of [her] vagina.” She was scared and did not tell anyone 

about the abuse.

When Emily was nine years old, Linares left the family home for several months, 

returning when Emily was 10 years old. By the time he returned, Emily had entered 

puberty. Linares resumed his molestation of Emily: He put his hand under her shirt to 

touch her breasts and also placed his mouth on her genitals on more than one occasion. 

Emily also testified that, beginning when she was 10 years old, he “touch[ed] her body”

with his penis like he “used to when I was eight.” Emily felt very uncomfortable but was 

afraid to report the abuse. Emily finally told her aunt Nancy and then her mother. 

Emily’s mother reported the abuse to the police, and she and her children moved out of 

the family home. 

A.F., one of Emily’s maternal aunts, was born in October 1993. When A.F. was in 

first grade, Linares assisted the family by picking up A.F. from school. On more than 

one occasion Linares drove with A.F. to an alley, placed her on his lap in the backseat, 

pushed aside her skirt, pulled down her underpants and touched her vagina with his 

fingers. A.F. also described an assault that occurred when she was in the first grade and 

alone with Linares at home. After ordering her to remove her clothing and lie down on a 

bed, Linares put hair wax on his fingers and touched her vagina. A.F. initially did not tell 

 

victim’s 28th birthday. (Stats. 2007, ch. 579, § 40, p. 4845.) Effective January 1, 2015, 

section 801.1 was amended to expand that limitation period to any time prior to the 

victim’s 40th birthday. (See Stats. 2014, ch. 921, § 1.)
4

anyone about the abuse because she feared she might get in trouble and believed she was 

somehow to blame. A.F. moved to Oregon a short time later with her family and 

returned to Los Angeles when she was in the 11th grade. When A.F. learned Linares had 

abused Emily, she revealed to her family that Linares had also sexually abused her. 

During an interview with Los Angeles Police Detective Blanca Pasos, Linares 

asked, “Can someone be blamed for something when they don’t remember doing it or 

when they were incoherent when they did it or they were doing it? How can you find me 

guilty if I don’t remember doing it?” Linares testified in his own defense at trial and 

denied asking Detective Pasos this question. He also denied any sexual misconduct 

toward Emily or A.F. He believed Emily was retaliating against him because he had 

taken away her cell phone for a month. He was surprised A.F. was accusing him of 

sexual misconduct and insisted both she and Emily were lying.

3. The Verdict and Sentence

The jury convicted Linares on all counts and found the special allegations true. 

Linares was sentenced to an aggregate indeterminate state prison term of 55 years to life.

4

 

DISCUSSION

1. There Is No Reasonable Likelihood the Jury Believed It Could Convict Linares 

of Continuous Sexual Abuse Based on the Same Acts That Were the Subject of 

Other Counts 

Section 288.5, subdivision (a), provides, “Any person who either resides in the 

same home with the minor child or has recurring access to the child, who over a period of 

time, not less than three months in duration, engages in three or more acts of substantial 

sexual conduct with a child under the age of 14 years at the time of the commission of the 

offense . . . or three or more acts of lewd or lascivious conduct . . . is guilty of the offense 

of continuous sexual abuse of a child . . . .” Subdivision (c) of section 288.5 provides, 

 

4 As calculated, Linares’s sentence consisted of 25 years to life for count 3 (§ 288.7, 

subd. (a)), plus a full, consecutive 15 years to life for count 4 (§§ 288.5, subd. (a), 667.6, 

subds. (d), (e)(6)), plus a full consecutive 15 years to life for count 6 (§§ 288, subd. (a), 

667.61, subds. (b), (c)). The court imposed concurrent 15-year-to-life terms for 

counts 1, 2 and 7. 
5

“No other [felony sex offense] involving the same victim may be charged in the same 

proceeding with a charge under this section unless the other charged offense occurred 

outside the time period charged under this section or the other offense is charged in the 

alternative.” 

Linares acknowledges the time period identified in the amended information for 

count 4’s charge of continuous sexual abuse did not overlap with the dates alleged in the 

other counts pertaining to Emily and thus complied with section 288.5, subdivision (c). 

Specifically, as charged, count 4 applied to acts on or after November 5, 2011, after 

Emily turned 10 years old, while counts 1, 2 and 3 charged lewd acts during the period 

November 5, 2009 through November 4, 2011, when Emily was eight and nine years old. 

However, the amended information was not given to the jury; and none of the jury 

instructions identifying the elements of the charges, including the instruction for 

continuous sexual abuse (count 4), contained any specific dates. Emphasizing that 

omission, Linares contends the continuous sexual abuse instruction permitted the jury to 

find him guilty on that count for acts during the same time period as those that were the 

subject of counts 1, 2 and/or 3, in violation of section 288.5, subdivision (c).

5

 (See 

People v. Johnson (2002) 28 Cal.4th 240, 248 [a defendant may be charged in the 

alternative with both continuous sexual abuse under section 288.5 and a discrete act of 

sexual abuse during the same time period against the same victim but cannot be convicted 

of both].) 

In reviewing a claim of instructional error, we must determine whether “‘there was

a reasonable likelihood the jury applied the challenged instruction in an impermissible 

 

5 As to count 4 the jury was instructed with CALCRIM No. 1120: “The defendant 

is charged in Count 4 with continuous sexual abuse of a child under the age of 14 years in 

violation of Penal Code section 288.5, [subdivision] (a). [¶] To prove that the defendant 

is guilty of this crime, the People must prove that: [¶] 1. The defendant lived in the 

same home with or had recurring access to a minor child; [¶] 2. The defendant engaged 

in three or more acts of substantial sexual conduct or lewd or lascivious conduct with the 

child; [¶] 3. Three or more months passed between the first and last acts; AND [¶] 

4. The child was under the age of 14 years at the time of the acts. . . .”
6

manner.’ [Citation.] ‘The correctness of jury instructions is to be determined from the 

entire charge of the court, not from a consideration of parts of an instruction or from a 

particular instruction.’ [Citation.] ‘Moreover, any theoretical possibility of confusion 

[may be] diminished by the parties’ closing arguments.’” (People v. Hajek and Vo

(2014) 58 Cal.4th 1144, 1220; accord, People v. Houston (2012) 54 Cal.4th 1186, 1229 

[“[w]hen considering a claim of instructional error, we review the challenged instruction 

in the context of the instructions as a whole and the trial record to determine whether 

there is a reasonable likelihood the jury applied the instruction in an impermissible 

manner”].) 

As Linares argues, the omission of specific dates in several instructions pertaining 

to the elements of counts 1 through 4, considered in isolation, created the potential for an 

overlapping period between count 4, continuous sexual abuse of a child under 14 years, 

and the other offenses involving Emily. However, any ambiguity was clarified and the 

potential for overlap removed by other instructions and closing argument. In particular, 

the jury was instructed with CALCRIM No. 3501, a unanimity instruction that 

specifically identified November 5, 2009 to November 4, 2011, when Emily was eight 

and nine years old, as the pertinent time period for counts 1 and 2.

6

 The prosecutor also 

made clear during closing argument that the act of sexual intercourse at issue for count 3 

occurred during the same time period as counts 1 and 2: “Sexual intercourse with a child 

10 years and younger is count 3[,] [t]he third charge alleged against the defendant. It’s 

alleged within the same time frame as the first two lewd acts and I simply must prove the 

 

6 As given CALCRIM No. 3501 provided in part, “The defendant is charged with 

Lewd Act upon a Child in Counts 1, 2, 6 and 7 sometime during the period of 

November 5, 2009 to November 4, 2011 as to Counts 1 and 2 and October 5, 2000 and 

October 4, 2001 as to Counts 6 and 7. [¶] The People have presented evidence of more 

than one act to prove that the defendant committed these offenses. You must not find the 

defendant guilty unless: [¶] 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 

committed for each offense; [¶] OR [¶] 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.” 
7

defendant engaged in some act of sexual intercourse. . . . We know she said it [sexual 

penetration of the genital area] was [when she] was eight or nine years old[,] before he 

left. So the only question then is did he engage in an act of sexual intercourse or 

sodomy?” “The [charge of] intercourse with a child under 11 [is] intended to account for 

that time before the defendant had the break in contact. Emily told you she thought [she 

was] eight or nine, but before 10. It accounts for that period of time.” 

Significantly, as to count 4, the prosecutor emphasized repeatedly that the crime of 

continuous sexual abuse involved a time period different from, and later than, the time 

period for counts 1 through 3. After outlining the charges in counts 1 through 3 in the 

beginning of closing argument, the prosecutor explained count 4 involved sexual assaults 

after Emily’s 10th birthday: “[A]fter she turned 10 until the time she told the police,” she 

says “well there [is] stuff happening all the time. . . . Her 10th birthday is the start. 

That’s around the period you heard from all the witnesses that Mr. Linares left, was away 

from the family for a chunk of time.” To make sure the jury understood the crime of 

continuous sexual abuse involved a later time period than the other counts, the prosecutor 

further stated: “When you get the instructions you’ll see a couple pages about 

[continuous sexual abuse]. . . . [T]he reason the code and the instructions are so long is 

because those acts can be lots of different things so long as they are sexual crimes 

committed against children. It can be intercourse. It can be oral copulation. It could be 

touching. It could even be touching over the clothes. So long as it was three or more 

over a period of three months. The way it’s charged it starts from when Emily turned 10 

until July 2013 [when] the crime was reported. So we’ve got way more than three 

months. That’s the time period after the defendant got back from being away from the 

family and Emily talked about it happening, different things happening multiple times.” 

Linares acknowledges the unanimity instruction in CALCRIM No. 3501

adequately advised the jury that counts 1 and 2 involved acts occurring when Emily was 

eight and nine years old. However, he argues, even if the prosecutor’s closing argument 

clarified that the continuous sexual abuse count covered the period beginning when 

Emily was 10 years old, outside the period of counts 1 and 2, the omission of count 3 
8

from the unanimity instruction unlawfully permitted the jury to convict him of both the 

discrete crime of sexual intercourse with a child 10 years old and younger (count 3) and 

continuous sexual abuse of a child under 14 years old (count 4) for acts occurring during 

an overlapping time period—when Emily was 10 years old. Again, Linares ignores the 

totality of the record. As discussed, the prosecutor specified the acts of sexual 

intercourse at issue in count 3 took place, like the two acts of lewd conduct charged in 

counts 1 and 2, before Linares left the family home, when Emily was eight or nine years 

old. When the record is considered as a whole, there is no reasonable likelihood the jury 

interpreted the instructions as Linares suggests and convicted him on count 4 based on 

acts that occurred before Emily was 10 years old. 

2. The Court’s Failure To Give a Unanimity Instruction for Count 3, Although 

Error, Was Harmless Beyond a Reasonable Doubt 

A criminal defendant’s right to a jury trial includes the right to a unanimous 

verdict, including unanimous agreement on the act constituting the offense charged. 

(Cal. Const., art. I, § 16, People v Russo (2001) 25 Cal.4th 1124, 1132.) Therefore, when 

an accusatory pleading charges a single criminal act and the evidence shows more than 

one such unlawful act, either the prosecution must elect among the crimes or the court 

must require the jury to agree on the same criminal act beyond a reasonable doubt. 

(Russo, at p. 1132.) “This requirement of unanimity as to the criminal act ‘is intended 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.’” (Ibid.) 

The trial court has a sua sponte duty to give a unanimity instruction when 

supported by the evidence. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) We review

the failure to give a unanimity instruction de novo. (People v. Hernandez (2013) 

217 Cal.App.4th 559, 569.) 

Because Emily testified there was more than one act of sexual intercourse when 

she was eight or nine years old, Linares contends the court erred in failing to include 
9

count 3 in the unanimity charge to the jury.

7

The People, on the other hand, contend a 

unanimity instruction was unnecessary as to count 3 because the prosecutor elected a 

single act of intercourse to be the subject of that count, namely, when Emily awoke on 

the pile of blankets in her grandmother’s bedroom to find Linares on top of her. While 

Emily provided her most detailed testimony about that particular sexual assault, she also 

testified sexual intercourse with Linares had occurred more than once when she was eight 

or nine years old. There is nothing in the instructions, closing argument or elsewhere in 

the record to support a clear election of the sexual assault on the blankets as the single 

offense for count 3. 

Nonetheless, given the jury’s clear rejection of Linares’s only defense—Emily had 

fabricated all of the allegations of sexual abuse in retaliation for being disciplined—any 

error in the omission of a unanimity instruction as to count 3 was harmless beyond a 

reasonable doubt:

8

 The jury necessarily believed Emily’s testimony; and there was no 

argument, let alone evidence, to suggest Linares had committed some, but not all, of the 

acts she had described. (See People v. Curry (2007) 158 Cal.App.4th 766, 783 [when 

“‘the record provides no rational basis, by way of argument or evidence, for the jury to 

distinguish between the various acts, and the jury must have believed beyond a 

 

7 As discussed, the unanimity instruction given to the jury addressed counts 1, 2, 6 

and 7 and did not require the jury to agree on which act of intercourse was at issue in 

count 3. 

8 Appellate courts are divided as to the standard of prejudice to apply to the failure 

to give a unanimity instruction. (Compare People v. Vargas (2001) 91 Cal.App.4th 506, 

561 [applying state law standard of People v. Watson (1956) 46 Cal.2d 818, 836] with 

People v. Smith (2005) 132 Cal.App.4th 1537, 1545 [applying federal constitutional 

standard of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 

705]]; see also People v. Hernandez, supra, 217 Cal.App.4th at pp. 576-577 [discussing 

the split of authority and citing cases].) The majority of courts that have addressed this 

issue have applied the Chapman standard for federal constitutional error, concluding, as 

do we, that the failure to give the unanimity instruction can result in lowering the 

prosecution’s burden of proof in a criminal case, an error of federal constitutional 

dimension. (See People v. Curry (2007) 158 Cal.App.4th 766, 784; People v. Wolfe

(2003) 114 Cal.App.4th 177, 186.) 
10

reasonable doubt that defendant committed all acts if he committed any, the failure to 

give a unanimity instruction is harmless’” beyond a reasonable doubt]; People v. Brown 

(1996) 42 Cal.App.4th 1493, 1502 [where defendant’s only defense to molestation 

charges was that victim was lying and none of the incidents occurred, and there was no 

evidence or argument to discriminate between one act of molestation and another, failure 

to give unanimity instruction, although error, was harmless beyond a reasonable doubt]; 

People v. Thompson (1995) 36 Cal.App.4th 843, 853 [“[w]here the record indicates the 

jury resolved the basic credibility dispute against the defendant and therefore would have 

convicted him of any of the various offenses shown by the evidence, the failure to give 

the unanimity instruction is harmless”].) 

DISPOSITION

The judgment is affirmed.

PERLUSS, P. J. 

We concur:

SEGAL, J. 

BECKLOFF, J.

*

 

* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.