THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN ROJAS, Defendant and Appellant.
No. F067157
Court of Appeal, Fifth District, California
June 22, 2015
237 Cal. App. 4th 1298
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOMES, J.—A Fresno County jury found Benjamin Rojas guilty of sexually abusing his young stepdaughter in violation of Penal Code sections
Appellant‘s claims fall into three general categories: instructional error, procedural error, and sentencing error. With respect to instructional error, his briefs contain multiple arguments stemming from the trial court‘s use of a modified version of CALCRIM No. 207. We address these arguments in turn as they pertain to each of his three counts of conviction. The claims of procedural error and sentencing error are moot in light of our conclusion that the conviction under
FACTUAL AND PROCEDURAL BACKGROUND
Rojas was charged by information with oral copulation or sexual penetration of a child under the age of 10 years (
All charges were tried before a jury in March 2013. Given the nature of the issues raised on appeal, we will provide an abbreviated summary of the underlying facts. Additional information concerning the claims of instructional error is provided in the Discussion.
On or about August 6, 2011, Rojas‘s wife awoke in the middle of the night and found herself alone in bed. After getting up and searching through the house, she located Rojas in her daughter‘s room. He was naked, and her daughter was clothed only from the waist up. According to the mother‘s trial testimony, the child accused Rojas of touching her vaginal area with his fingers. She also said that Rojas had previously molested her “a few times.” A witness who spoke to Rojas‘s wife two days after the incident recalled that she claimed the victim told her Rojas had “used his mouth” while touching her.
The victim was questioned by police and interviewed by professionals who specialize in investigating allegations of sexual abuse. She told police that Rojas penetrated her using his fingers and penis on the night her mother walked in on them. The victim also reported that Rojas had abused her in a similar fashion approximately 10 times, beginning when she was three or four years old. She provided the same timeline for the abuse in a subsequent interview.
At trial, the victim testified that Rojas molested her approximately four times, but could not recall how old she was when the abuse first started. With regard to the night her mother caught him in her bedroom, she described acts
A police officer testified that Rojas made a confession during an unrecorded custodial interview. He reportedly admitted inserting his fingers into the victim‘s vagina during the early morning hours of August 6, 2011, but claimed it was the first and only time he had ever molested her. The jury was also shown a letter written by Rojas in which he apologized to his wife and stepdaughter for his “error.” DNA testing established that Rojas was the source of multiple semen stains found on the victim‘s bedsheets.
The jury deliberated for approximately one hour before finding Rojas guilty on all counts. He was thereafter sentenced to a total of 40 years to life in prison. The sentence was calculated as follows: As to Count 1, a mandatory term of 15 years to life. As to Count 2 a mandatory term of 25 years to life, to be served consecutively. The trial court imposed the middle term of 12 years for Count 3 which was stayed pursuant to
DISCUSSION
Jury Instructions
The trial court instructed the jury using CALCRIM No. 207, which read as follows:
“It is alleged that the crime in Count 1 occurred on or about August 6, 2011. The People are not required to prove that the crime in Count 1 took place exactly on that day, but only that it happened reasonably close to that day.
“It is alleged that the crimes in Counts 2 and 3 occurred on or about December 1, 2006, through August 5, 2011. The People are not required to prove that those crimes took place exactly during those time periods, but only that they happened on a date or dates after August 12, 2005.”
This instruction was requested by the prosecution and was given without objection from the defense. Reference to August 12, 2005, was apparently intended to denote the earliest possible accrual point for the statute of limitations.
Rojas alleges error in the portion of the instruction that told jurors, “The People are not required to prove that the crime in Count 1 took place exactly on [August 6, 2011], but only that it happened reasonably close to that day.” He argues this language permitted the jury to convict him under both Counts 1 and 2 for the same criminal act. His position is largely dependent upon the incorrect assertion, made in his opening brief, that the jury did not receive a unanimity instruction as to Count 1. Rojas acknowledges the mistake in his reply brief, but complains that the unanimity instruction was only given orally, and was not included in the written instructions.
The Attorney General correctly argues that Rojas should have objected to the instruction at the time of trial. “A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Lang (1989) 49 Cal.3d 991, 1024 [264 Cal.Rptr. 386, 782 P.2d 627].) CALCRIM No. 207 accurately states the general rule that when a crime is alleged to have occurred “on or about” a certain date, it is not necessary for the prosecution to prove the offense was committed on that precise date, but only that it happened reasonably close to that date. (See
Rojas cites and relies upon People v. Gavin (1971) 21 Cal.App.3d 408 [98 Cal.Rptr. 518] (Gavin) as standing for the proposition that CALCRIM No. 207 should not be used “when two similar offenses are charged in separate counts.” His interpretation of that case is overreaching. It is only “when the prosecution‘s proof establishes the offense occurred on a particular day to the exclusion of other dates, and when the defense is alibi (or lack of opportunity), [that] it is improper to give the jury an instruction using the ‘on or about’ language.” (Jennings, supra, 53 Cal.3d at pp. 358-359.)
In Gavin, the defendant was accused of unlawfully possessing lysergic acid diethylamide (LSD) and amphetamine on or about October 25, 1969. (Gavin, supra, 21 Cal.App.3d at p. 411.) The defendant disputed the charges, but gave testimony in which she admitted to briefly possessing amphetamine on a
Unlike in Gavin, the jury below expressed no confusion over the “on or about” language in CALCRIM No. 207, nor was there any evidence of uncharged criminal acts upon which the Count 1 conviction could have mistakenly been based. The prosecution requested the instruction to account for a slight evidentiary discrepancy regarding whether Rojas‘s wife caught him abusing the victim in the late night hours of August 5 or the early morning hours of August 6, 2011. The wife believed the correct date to be August 6, but testified that she was not sure if the incident “took place at about midnight or 1:00 in the morning.” The victim told an interviewer that her mother learned of the abuse on “Friday night,” which would have been August 5. Either way, there is nothing in the record to suggest the jury did not fully understand Count 1 applied to the incident that occurred on the night when Rojas‘s wife found him naked in the victim‘s bedroom. In other instructions, the jury was told: “Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.” Under these circumstances, and based on the evidence presented at trial, there is no likelihood that the verdict for Count 1 would have been different had the challenged instruction not been given.
Rojas‘s claim that the jury did not receive a written unanimity instruction is puzzling because, according to the supplemental clerk‘s transcript (prepared as a result of Rojas‘s motion to augment the record), the jurors were provided a written unanimity instruction for Count 1 which included the standard language of CALCRIM No. 3500. Were we to assume Rojas could prove the instruction was left out of the jury‘s packet of written instructions, we would find the omission to be inconsequential. There is no constitutional right to written jury instructions under state or federal law. (People v. Samayoa (1997) 15 Cal.4th 795, 845 [64 Cal.Rptr.2d 400, 938 P.2d 2].) California requires augmentation of oral instructions with written instructions only upon request (
Count 2
With respect to Count 2, Rojas argues that the modified CALCRIM No. 207 instruction resulted in an ex post facto violation insofar as jurors were told he could be convicted of violating
Our state and federal Constitutions prohibit ex post facto laws. (
“[I]t is the prosecution‘s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant‘s punishment.” (People v. Hiscox (2006) 136 Cal.App.4th 253, 256 [38 Cal.Rptr.3d 781] (Hiscox).) Although Rojas did not make an ex post facto challenge below, respondent concedes that the claim may be raised for the first time on appeal and should be reviewed under the harmless error standard described in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]. (Hiscox, supra, 136 Cal.App.4th at pp. 258, 261; People v. Farley (1996) 45 Cal.App.4th 1697, 1710 [53 Cal.Rptr.2d 702].) Since the jury was not asked to make a finding that Count 2 occurred after the effective date of
Considering jurors were aware the victim was born in December 2002, it is certainly possible that they interpreted the reference to 2005 as bearing some relationship to her statements that the abuse began when she was “three or four years old.” Apart from this estimate, there was no evidence to show when any of the crimes committed prior to the incident in Count 1 had occurred. If the jury‘s verdict on Count 2 was based on an event that took place when the victim was three years old, the crime could have happened anytime between December 2005 and December 2006, and most of that period fell outside of the date when
Count 3
Rojas submits that Count 3 is also subject to reversal on ex post facto grounds, but offers no further analysis or argument in support of his contention. We reject this claim. The law governing continuous sexual abuse of a child under the age of 14 was codified by the enactment of
Violation of Section 288.5, Subdivision (c)
Appellant contends, and respondent concedes, that the prosecution was statutorily prohibited from charging Counts 2 and 3 in a manner which sought, and led to, dual convictions for violations of
There is authority from the Third District which holds that a dual conviction in violation of
In Johnson, the California Supreme Court held that when multiple convictions are obtained in violation of
Although
Sentencing Issues
All of appellant‘s claims with respect to sentencing concern the trial court‘s imposition of a consecutive sentence for Count 2, as opposed to a concurrent or stayed term of imprisonment. These issues are obviously mooted by our reversal of his conviction on that count. The reversal does, however, impact Rojas‘s sentence under Count 3. With respect to Count 3, the stay of Rojas‘s 12-year prison term pursuant to
DISPOSITION
The judgment is affirmed in part and reversed in part as stated above. The conviction under Count 2 for violation of
Hill, P. J., and Levy, J., concurred.