Filed 11/9/15 P. v. Linares CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.

MARVIN LIN ARES,
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 t he 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 Plai ntiff and Respondent.

_____________2

Marvin Linares was convicted by a jury o n 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 sexu al 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 o n 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 mean ing 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 1 8 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 L inares pleaded not guilty and denied the special allegations.

1 Statutory references are to this code.
2 The am ended 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 the3

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 fi rst he remove d her clothing
from the waist down and touch ed her bare genitals with his hands. H is behavior soon escalated ; and, more than once when Emily was eight or nine years old, Linares inserted his penis “ in side her.” Emily specifically recalled on e 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 an yone about the abuse.
When Emily was nine years old, Lin ares 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 p laced hi s 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 r eported the abuse to the police , and she and her children moved out of the family home

. A.F. , one of Emily’s maternal aunt s , was born in October 1993. When A.F. was in first grad e, Linares assisted the f amily by picking up A.F. from school. On m ore than

on e occasion Linares drove with A.F. to an alley, place d her on his lap in the backseat, push ed aside her skirt, pull ed down her underpants and touch ed 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 t o remove her cloth ing and lie down on a
bed , Linares put hair wax on his fingers and touched her vagina. A.F. initially di d not tell

victim’s 28th birthday. (Stats. 2007, ch. 5 79, § 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 abo ut 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 Lin ares 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
whe n 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 an d 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 Co nvict Linares of C ontinuous 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 lasciviou s 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 sect ion unless the other charged offense occurred outside the time period charged under this section or the other offense i s charged in the
alternative .” Linares acknowledges the time period identified in the amended information for

count 4’s charge of conti nuous 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, th e amended information was not given to the jury ; and none of the jury
instructions identi fying the elements of the cha rges, 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 erro r, 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 se ction 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 instructi on 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 (201 2 ) 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 instructi on in an impermissible manner”] .) As Linares argues, t he 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, contin uous 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,

t he jury was instructed with CALCRI M 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 t he 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 t ime frame as the first two lewd acts and I simply must prove the

6 As given CAL CRIM No. 3501 provided in part, “The defendant i s charged with Lewd Act upon a C hild 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, 20 0 1 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, a s to count 4, t he 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.

. . . H er 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 underst ood 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’l l see a couple pages about [continuous sexual abuse]

. . . . [T]he reason the code and the inst ructions 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 oc curring when Emily was eight and nine years old . However, he argues, e ven 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 38

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 duri ng an overlapping time period

— when Emily was 10 years old. Again, Linares ignores the totality of the record. As discussed, the prosecutor specified the act s 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, the re is no reasonable likelihood the jury interpreted the instructions as Linares s uggests 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 s ingle 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 requi rement 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. )
T he trial court has a sua sponte du ty to give a unanimity instruction whe n 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 test ified 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 include9

count 3 in the unanimity charge to the jury. 7 The People , on the other hand, contend a unanimity instructi on 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 he r most detailed testimony about th at particular sexual assault
, she also
testified sexual interc ourse 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

t he record to support a clear election of th e sexual assault on the blankets as the single
offense for count 3. Nonetheless, given the jury ’s clear reject ion of Linares’s only defense

— Emily had
fabricated all of the allegations of sexual abuse in retalia tion for being disciplined

— an y 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 c ommitted 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 ju ry 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 App ellate 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 Pe ople 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 p p

. 576

- 577 [discussing the s plit 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. Wolf e (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 offense s 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.