People v. Medina CA4/1

Filed 5/11/16 P. v. Medina CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D069933
Plaintiff and Respondent,
v. (Super. Ct. No. SWF1200626)
MATTHU JUNIOR MEDINA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County, Angel M.
Bermudez, Judge. Affirmed as modified with directions.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew
Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Matthu Junior Medina of one count of sexual intercourse with a
child age 10 years or younger (count 1; Pen. Code,1 § 288.7, subd. (a)); committing a
lewd act with a child under age 14 (count 2, an alternate statement of the offense in
count 1; § 288, subd. (a)); and two counts of sexual penetration of a child under age 10
(counts 3, 4; § 288.7, subd. (b)). The jury also found Medina inflicted great bodily injury
on the victim in count 1 (§§ 12022.53, 12022.7, subd. (a), 1192.7, subd. (c)(8)).
The court sentenced Medina to an indeterminate term of 55 years to life plus three
years for the enhancement.
Medina appeals challenging the court's instruction on unanimity (CALCRIM No.
3500) and contends the $300 restitution fine imposed by the court must be reduced to
$240. The People correctly agree the trial court erred in imposing the wrong minimum
restitution fine. Accordingly, we will order the judgment modified to reflect the correct
restitution fine. In all other respects we will affirm the judgment.
STATEMENT OF FACTS
Medina does not challenge either the admissibility or sufficiency of the evidence
to support his convictions. Thus, we will only set forth an abbreviated statement of facts
in order to provide context for the discussion which follows.
This case involves allegations of sexual intercourse and sexual penetration of the
victim, Jane Doe, who was under 10 years of age at the time of the events. The charged
offenses occurred between January 2011 and February 2012.
1 All further statutory references are to the Penal Code unless otherwise specified.
2
Doe was the daughter of a woman who was living with Medina and her children at
the time of the offenses.
In February 2012, Doe reported to her mother that she had pain urinating, that she
was hurting in the area of her genitalia, and that Medina had touched her in a bad way.
Doe's mother took her to the hospital.
A sexual assault examination of Doe was performed on February 23, 2012. The
doctor observed injuries to Doe's genitalia which were consistent with sexual penetration.
The doctor also observed blisters, swabs of which were sent to the lab for testing. The
lab results and later examination revealed Doe had contracted genital herpes. Expert
testimony indicated Doe likely acquired the infection one to two weeks prior to the onset
of symptoms.
Doe was interviewed by the Riverside County Child Assessment Team (RCCAT)
on February 23, 2012. During the interview, Doe identified Medina as the person who
perpetrated the various acts upon her. Doe told the interviewer that while her mother was
in the shower, Medina inserted his finger into her vagina (she called it her "potty area"),
and that it hurt. The most recent event of this nature was at Medina's mother's house.
Doe said Medina did the "same thing" at Paula's house on another occasion.
Doe also said that while at Paula's house Medina pulled down her pants and
inserted his penis into her vagina, again using the term potty area to describe Medina's
penis and her "cookie" to describe her vagina.
After Medina was arrested, he was tested for genital herpes. Medina tested
positive for that form of herpes.
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Defense Evidence
Medina called expert witnesses to criticize the medical reports presented by the
prosecution and to testify that Medina was not suffering from any mental disorder and
that nothing in his background indicated he would act out sexually.
DISCUSSION
I
THE UNANIMITY INSTRUCTION
During the jury instruction conference, the court on its own motion indicated it
would give CALCRIM No. 3500, the basic unanimity instruction. Neither party
requested an instruction on unanimity and neither party objected to the court's choice of
instructions. The trial court specifically noted that the modified unanimity instruction,
CALCRIM No. 3501 was not applicable. Again, there was no objection by either party.
Medina now claims, for the first time on appeal that the court erred in selecting the
basic instruction and, therefore he was denied due process. As we will discuss,
CALCRIM No. 3500 was the correct instruction for the facts of this case, and even if
there was a possible error, on this record any error would be harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
A. There Was No Error
The two instructions we will discuss in this case are CALCRIM Nos. 3500 and
3501. They read as follows:
CALCRIM No. 3500: "The defendant is charged with [in Count ] [sometime during the
period of __________ to ___________ ]. The People have
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presented evidence of more than one act to prove that the defendant
committed this offense. You must not find the defendant guilty
unless 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/she) committed."
CALCRIM No. 3501: "The defendant is charged with [in Count[s] ] sometime during
the period of _____________ to ____________. [¶] The People
have presented evidence of more than one act to prove that the
defendant committed (this/these) offense[s]. 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/she) 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]."
The difference between CALCRIM Nos. 3500 and 3501 is found in the second
paragraph in No. 3501. That paragraph deals with cases in which there are a number of
charged acts which must be proved. Where there is generic testimony about multiple
instances of such acts the jury must not only agree on the acts on which it relies, but it
must also find that all of the charged acts were committed.
In People v. Jones (1990) 51 Cal. 3d 294, 321-322, the court discussed the
difference in the use of the two types of instructions involved here. The court said:
"In a case in which the evidence indicates the jurors might disagree
as to the particular act defendant committed, the standard unanimity
instruction should be given. [Citation.] But when there is no
reasonable likelihood of juror disagreement as to particular acts, and
the only question is whether or not the defendant in fact committed
all of them, the jury should be given a modified unanimity
instruction which, in addition to allowing a conviction if the jurors
unanimously agree on specific acts, also allows a conviction if the
jury unanimously agrees the defendant committed all the acts
described by the victim."
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In People v. Smith (2005) 132 Cal. App. 4th 1537, 1542-1544, the court discussed
the need for the modified unanimity instruction. In Smith the defendant was charged with
continuous sexual conduct with a minor (§ 1203.066, subd. (a)(8)). The court instructed
the jury it had to find the defendant had committed all 10 charged acts, but did not tell the
jury it must be unanimous as to which acts done by the defendant constituted the charged
acts. The court held that where the evidence consists of generic testimony involving
multiple similar acts over time, the jurors must be unanimous as to which acts were
committed and whether all of the charged acts were committed. Smith is distinguishable
from the case before us.
We note first that in this case we are only concerned with the two sexual
penetration counts (counts 3, 4). The evidence showed that the acts of penetration
occurred at two different residences during the relevant time period: Medina's mother's
house and "Paula's" house. Only one act was charged in each count, thus only one act in
each count was required to be proved. However, since the victim stated the same type of
act occurred several times at each place, the court needed to instruct the jury that it must
unanimously agree as to which act supported the current charge. That instruction was
properly contained in CALCRIM No. 3500. Since there was only one charged act in
each count, the second paragraph in CALCRIM No. 3501 was not relevant.
In any event, the prosecutor specifically informed the jury that one count applied
to Medina's mother's house and one to Paula's house. Given the nature of the charged
offenses involving only one charged act each, and the prosecutor's clarification that the
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two counts cover different locations, we are satisfied the trial court correctly instructed
the jury using instruction CALCRIM No. 3500. There was no error.
B. Any Error Was Harmless
Even if one could conclude that CALCRIM No. 3501 should have been given, any
error in this case was harmless, beyond a reasonable doubt. (Chapman v. California,
supra, 386 U.S.18, 24.) As we have discussed above, counts 3 and 4 each charged a
single act, however, because the testimony was generic as to several possible instances at
each location, the trial court correctly told the jurors they must be unanimous in their
decision as to which acts support the convictions for the two counts. The simple nature
of the charges and the prosecutor's clarification as to location for each count eliminated
any concern regarding proof of "all acts" as discussed in CALCRIM No. 3501. (People
v. Matute (2002) 103 Cal. App. 4th 1437, 1448-1450.) There was no prejudicial error in
this case.
II
THE RESTITUTION FINE
At the sentencing hearing, the trial court stated the intention of imposing the
minimum restitution fine. The court imposed a $300 fine, which was the minimum
amount required as of the time of sentencing. However, as the parties have agreed, at the
time of the offenses the minimum fine was $240. (People v. Souza (2012) 54 Cal. 4th 90,
143; People v. Saelee (1995) 35 Cal. App. 4th 27, 31; People v. Martinez (2014) 226
Cal. App. 4th 1169, 1189.) Accordingly, we will order the judgment modified to reflect a
restitution fine, and a parole revocation fine of $240.
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DISPOSITION
The judgment is modified to reflect a restitution fine and parole revocation fine in
the amount of $240. The trial court is directed to modify the abstract of judgment
accordingly and forward an amended abstract to the Department of Corrections and
Rehabilitation. In all other respects the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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