People v. Baughman , 149 Cal. App. 4th 22 ( 2007 )

56 Cal.Rptr.3d 675 (2007) 149 Cal.App.4th 22

The PEOPLE, Plaintiff and Respondent,
v.
Ricky Verrell BAUGHMAN, Defendant and Appellant.

No. C050147.

Court of Appeal of California, Third District.

March 29, 2007.

Maribeth Halloran, under appointment by the Court of Appeal, Mill Valley, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, David A. Rhodes, Supervising Deputy Attorney General, Clayton S. Tanaka, Deputy Attorney General, for Plaintiff and Respondent.

Certified for Partial Publication.^[*]

ROBIE, J.

Defendant Ricky Verrell Baughman was convicted after a jury trial of incest, oral copulation of a person under the age of 16, and 10 counts of lewd and lascivious acts upon a child more than 10 years younger than defendant. Sentenced to nine years eight months in state prison, defendant appeals. He contends there was insufficient evidence to support three of the counts for committing lewd and lascivious acts and that the trial court erred in failing to instruct the jury with a specific acts unanimity instruction as to the incest count. He also contends his upper term sentence violates Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely). We reject his contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The victim, F., was born in November 1989. She and her two brothers lived in a trailer with their father. F. testified that "a little while after Christmas"—approximately "three or four months" after her 14th birthday—defendant placed his hand on her breast, under her shirt and bra, while she was lying in bed. He left his hand there for a "long time."

Later that same day, while the family was at defendant's mother's house, defendant apologized to F. and said it would "never happen again." Within five minutes, however, defendant closed the bathroom door, had F. remove her panties, and licked F.'s vagina as she sat on the toilet. After a minute or two, defendant removed his pants and had sexual intercourse with F. Afterward, he again told her he was sorry and it would never happen again.

Defendant, however, continued to have sex with F. just about every week. Nearly every time, defendant would apologize and promise it would never happen again. The incidents occurred when F.'s brothers were gone or asleep. Sometimes defendant gave her brothers money to go to the store and would then have sex with F. while they were gone. Defendant would tell the brothers to slow down if they returned too quickly. On one occasion, F.'s brothers awoke while defendant was having sex with F. and saw defendant "going up and down." When F.'s brothers told defendant they thought he and F. were having sex, defendant got upset, raised his voice, and said he and F. had just been playing around.

On November 11, 2004, a couple of weeks after the final incident, F. told an adult friend that defendant was having sex with her and she could no longer stay with him. F. was interviewed by police. Although being scared and nervous, she failed to mention that defendant had also had sex with her on that first occasion when he licked her vagina.

Defendant was interviewed by police on November 17, 2004. In that interview, he denied any sexual contact with F. However, on November 19, 2004, during a consultation with Billy Lee Wilson, Jr., a marriage and family therapist intern at Shasta Treatment Associates, defendant admitted he had a sexual relationship with F. Defendant told Wilson that he had sexual intercourse with F. between four to six times, "[o]ne to two years before" the date of the consultation. Also, on December 1, 2004, in another interview with police, defendant admitted he had sexual intercourse with F. several times.

At trial, defendant testified he did not remember having sex with F., although he did not deny it. Defendant did not remember speaking with Wilson and said he admitted having sex with F. to the police because the police made him fear F. would commit suicide or turn to drugs or prostitution if he said she was lying. Defendant said he had problems with his memory due to a head injury he sustained a few years earlier.

DISCUSSION

I^[**]

II

Unanimity Instruction

Defendant also contends the trial court failed to give the required specific acts unanimity instruction for the one count of incest. He contends this omission resulted in a violation of his state and federal constitutional due process rights and his state constitutional right to a unanimous verdict. There was no error.

The requirement of jury unanimity "``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.' [Citation.] ... ``The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.'" (People v. Russo (2001) 25 Cal.4th 1124, 1132, 108 Cal.Rptr.2d 436, 25 P.3d 641, italics omitted.)

With respect to the charge of incest, defendant was charged with one count alleged to have occurred between December 1, 2003, and September 30, 2004. The evidence presented and argued by the prosecution consisted of at least two specific instances, as well as testimony it occurred weekly" for approximately nine months. The prosecution did not select any specific act to prove the charge. Therefore, a unanimity instruction was required.

The court instructed the jury with CALJIC No. 4.71.5 which has two variations. In the first, the jury is told that, "in order to find the defendant guilty, you must unanimously agree upon the commission of [the same specific act [or acts] constituting the crime] ... within the period alleged" (the "specific acts version").

In the second, which was given by the court here and did not distinguish among the charges, the jury was told it "must unanimously agree upon the commission of ... [all of the acts described by the alleged victim] within the period alleged." According to the use note, the first version should be given where "the jurors might disagree as to the particular act defendant committed." The second should be used "[w]hen there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant committed all of them."

Defendant contends this instruction as given by the court was inadequate to inform the jury of the requirement that it unanimously agree on the acts constituting the crimes alleged. Defendant argues that the court should have instructed the jury in accordance with either the "specific acts version" of CALJIC No. 4.71.5 or CALJIC No. 17.01, which reads:

"The defendant is accused of having committed the crime of ____ [in Count ____]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act][or] [omission] upon which a conviction [on Count ____] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he][she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count ____], all jurors must agree that [he][she] committed the same [act][or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act][or] [omission] agreed upon be stated in your verdict."

While the "specific acts version" of CALJIC No. 4.71.5 may have been more appropriate as to the incest count, the jury was faced with either believing F. or defendant. The instruction given by the trial court adequately informed the jury of the requirement of unanimity. Indeed, it went even further. Even if it were possible the jurors might have disagreed about how many or which incidents occurred, the instruction given by the court indicated the jury must unanimously agree that defendant committed all of the acts described by F.^[1] This is a much heavier burden than requiring unanimous agreement on any particular act. The jury is presumed to have complied with the instructions given to it. (People v. McLain (1988) 46 Cal.3d 97, 119-120, 249 Cal.Rptr. 630, 757 P.2d 569.)

Nevertheless, defendant contends that reversal is required under People v. Smith (2005) 132 Cal.App.4th 1537, 34 Cal. Rptr.3d 472—a case in which this court reversed the defendant's sex offense conviction based on die trial court's failure to give a unanimity instruction and the risk that the defendant was convicted even though there was no agreement among the jurors as to which act constituting the crime the defendant committed. (Id. at p. 1540.) Smith is inapposite because the instruction here told the jury it must unanimously agree that defendant committed all the acts described by F., and unlike Smith, there is nothing in the record to suggest the jury did not follow this plain instruction. (Ibid.) We find no error.

III^[***]

DISPOSITION

The judgment is affirmed.

We concur: SIMS, Acting P.J., and HULL, J.

NOTES

[*] Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I and III of the Discussion.

[**] See footnote *, ante.

[1] Since the jury unanimously agreed defendant had committed all of the acts described by the victim, it necessarily unanimously agreed defendant had committed each specific act.

[***] See footnote *, ante.