P. v. Niece

1
Filed 1/9/07 P. v. Niece CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DENNIS NIECE,
Defendant and Appellant.
E037328
(Super.Ct.No. SWF007270)
O P I N I O N
APPEAL from the Superior Court of Riverside County. Rodney L. Walker,
Judge. Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzalez and
Lilia E. Garcia, Supervising Deputy Attorneys General, and Deana Bohenek, Deputy
Attorney General, for Plaintiff and Respondent.

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INTRODUCTION
A jury convicted defendant of two counts of aggravated sexual assault of a child
(counts 1 & 2; Pen. Code, §§ 269, subd. (a)(4) & (5))1 and four counts of lewd and
lascivious acts upon a child by force or fear (counts 3-6; § 288, subd. (b)(1)). The jury
also found true an allegation that defendant committed lewd and lascivious acts in the
present case against more than one victim. (§ 667.61, subd. (e)(5).) The court sentenced
defendant to 15 years to life for each of the six counts, and stayed the punishment on
counts 5 and 6 pursuant to section 654. The punishment for the convictions on counts 2,
3, and 4 are to run consecutive to the conviction on count 1, thus providing for a total
indeterminate term of 60 years to life.
Defendant contends: (1) the court erred in failing to instruct the jury on the
element of force with respect to one of the counts of aggravated sexual assault; (2) the
court prejudicially erred in admitting defendant’s offer to an investigating officer to plead
guilty; (3) the court prejudicially erred in failing to instruct sua sponte on the necessity of
jury unanimity; and (4) the court abused its discretion when it allowed defendant’s
former wife to testify that defendant raped her and limited cross-examination of that
witness. We reject these contentions and affirm.
SUMMARY OF FACTS
Victims J.T. and S.T. are brothers. J.T. turned 14 years old in February 2004. At
all relevant times S.T. was 12 years old. They lived with their grandmother. Defendant
1 All further statutory references are to the Penal Code unless otherwise indicated.

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lived in a room in the garage of the grandmother’s home. Defendant was 59 years old at
the time of trial.
On March 18, 2004, J.T. told a friend at school that he had been sexually molested
by defendant. The friend told the school’s assistant principal, Gregory White.2 White
then called J.T. into his office. J.T. told White about sexual activity between him and
defendant. J.T. said that it began when he and defendant watched pornographic movies
together and defendant told J.T., “‘I have a big dick, too. You want to suck on it?’” J.T.
also told White that defendant “attempted on numerous occasions to enter his penis into
[J.T.’s] butt.” J.T. also described an instance when he tried to resist defendant’s effort to
orally copulate him, but then “just kind of gave up.”
White reported the matter to the Riverside County Sheriff’s Department. Deputy
David Kurylowicz responded. At the school, J.T. told Kurylowicz that he was being
raped by defendant. When Kurylowicz asked J.T. what he meant by that, J.T. told him
that defendant “was making him suck his dick.” J.T. then asked to speak with S.T.
S.T. was called into the school office; the two children were then placed in a room
by themselves. J.T. told S.T. that he “told the cops about [defendant].” S.T. became
upset, began crying and yelling, and pounded on the wall. S.T. feared that he would be
taken from the grandmother and placed in foster care. White heard him tell J.T., “‘How
could you?’” and, “‘it happened to me, too.’” Kurylowicz heard him tell J.T., “‘No. No.
2 Although J.T. made the friend swear that he would not tell anyone, he believed
that the friend would tell someone at the school.

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Why did you tell? Why did you tell?’” Kurylowicz went into the room with the boys.
S.T. then told J.T., “‘He was raping me, too, but I didn’t want to tell anybody.’”
J.T. and S.T. then met with White and Kurylowicz in White’s office. It appeared
to White that J.T. was fearful of “something happening to him or his family.” Either J.T.
or S.T. told White that if they told someone what had happened, there would be serious
harm to them.
Kurylowicz then took J.T. and S.T. to the sheriff’s department. There, S.T. told
Kurylowicz that defendant showed him movies, would talk dirty to him, and grabbed his
penis and his buttocks. This happened about 20 times. When asked if other things
occurred, S.T. told him there was, but that “they were too upsetting or too dirty for him to
describe” to Kurylowicz. S.T. told Kurylowicz that he had been afraid to tell anyone
because defendant had told him that if he told anyone, he would “blow up his
grandmother and kill his brother” and bury the bodies in the desert.
J.T. told Kurylowicz about attempts by defendant to have anal intercourse upon
J.T., and that J.T. had performed anal intercourse upon defendant on more than one
occasion. J.T. said that defendant had forced him, by using threats, to perform oral
copulation on defendant’s penis at least 30 times. J.T. initially tried to resist, but
defendant would punch him in the head, shoulders, and ribs. After awhile, J.T. “quit
resisting and just let [defendant] get it over with.” J.T. also told Kurylowicz that
defendant had tried to use a dildo on him using lubricants. J.T. said that these events took
place over a six-month period, from October 2003 to the present.

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Riverside County Sheriff’s Deputy Kevin Duffy contacted defendant, who agreed
to be interviewed at the police station.3 Defendant told Duffy that the boys would come
into his room and watch pornographic videos, and that J.T. would go into the bathroom
and masturbate. Duffy testified that the following then occurred: “We took a break in
the interview room. He wanted to have a cigarette so I escorted him out of the interview
room down the hallway. And at that point, in the hallway, he asked me if we could make
a deal. And I asked him what he meant. And he said, what if he plead to a low-term deal
and did a year in custody, and when he got out, he would leave the state. And I told him
-- my response was, we’re not in any position to make any kind of deals. And he said he
understood.” At the end of the interview, defendant wrote a note to J.T., stating, “‘I’m
sorry it came to this. I only hope it’s the best for grandma and you kids?’”
On March 30, 2004, J.T. and S.T. were interviewed by Vera Diaz, a child
interview specialist with the Riverside County Assessment Team. J.T. described
instances in which defendant attempted to have anal intercourse with him. The first
attempt occurred in defendant’s car during a trip to Idyllwild to collect firewood. He told
Diaz: “[H]e says, ‘Get out.’ I got out. And he says, ‘Bend over.’ I said, ‘Why?’ And
[he] said ‘Bend over.’ And he threw me down over the seat and said, ‘Pull down your
pants.’ If I didn’t, he was gonna hit me and -- and he hits hard. So I just did what he said
and then he tried to screw me up the butt and I just screamed as loud as I could. And,
3 Defendant was told that he was not under arrest and was free to leave at any
time.

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you know, and he stopped . . . .” Including the Idyllwild incident, defendant “tried to do
something to [his] butt” on three to five occasions, the most recent occurring about one
month before the interview.
J.T. also told Diaz that on several occasions defendant would forcibly orally
copulate J.T., and one instance when defendant forced J.T. to orally copulate him. In
addition, there were numerous times when defendant attempted to make J.T. orally
copulate him, but J.T. would “always end up getting away or screaming or something.”
On another occasion, defendant used a “small little dildo thing.” J.T. said: “He’d
tell me to pull down my pants, bend over, spread [my] butt cheeks. And I thought he was
gonna try and do that to me again. But then he pulled out that dildo and he put this
lubricant stuff on it . . . . [¶] . . . [¶] . . . And he stook [sic] it up my butt.” This
occurred toward the end of 2003. Defendant also made J.T. look at pornographic videos
and magazines. Defendant had threatened to kill him and his “whole family” if J.T. ever
told anyone about these acts.
J.T. told Diaz that the conduct happened while he was in the seventh grade (which
began in September 2003) “and a little bit in 6th [grade].”
After Diaz concluded her interview, Duffy sought to clarify when the conduct
began and how often it occurred:
“DUFFY: . . . I didn’t understand how it first began. That’s up in Idyllwild.
“[J.T.]: Uh, pretty much, yeah.
“DUFFY: In the – in the Bronco. Was [sic] there some things that happened
before that that lead [sic] up to that?

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“[J.T.]: Like, no. He just – like it all started when he just started grabbing my
nuts and talked and, but one day we just went up there and that’s when he told me to – to
do that. [¶] . . . [¶]
“DUFFY: And then um – after that, other things started happening?
“[J.T.]: It just continued.
“DUFFY: Okay. . . . And when we – when we spoke last ah week, um – I think
you told me a number. I said – I think I – I said, ‘Well, how many times do you think
something’s happened within about – I think you said a six-month period, right?’
“[J.T.]: Yeah.
“DUFFY: And do you remember what you told me then?
“[J.T.]: I don’t remember the exact number.
“DUFFY: Okay. Let’s think real hard about the number of times different things
happened cause it’s – it’s pretty important – [¶] . . . [¶]
“[J.T.]: . . . I’d say – on the, like on an average kind of?[4]
“DUFFY: Or an average is okay. Yeah.
“[J.T.]: Out of everything put together, let’s say (inaudible) probably like 20.
“DUFFY: Okay. So when we talk about 20, we’re talking about – [¶] . . . [¶] --
him putting his – [¶] . . . [¶] -- penis in your butt.
“[J.T.]: [I]t would be like [an] average of five times.
“DUFFY: Okay.
4 Although J.T. used the word “average,” it appears that he meant an estimate.

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“[J.T.]: And then there’d be like the ah – then there’d be the time of him sucking
mine – [¶] . . . [¶] -- which would be an average of five.
“DUFFY: Okay. [¶] . . . [¶]
“[J.T.]: And then a [sic] average of him trying to make me suck his would be like
a 10 because, you know, he just – he said the reason was because ah – he couldn’t get
anything out of my grandma so he’s going for the second best which is me.
“DUFFY: That’s what he told you?
“[J.T.]: Yeah.
“DUFFY: Okay. And then ah – the dildo. How many times –
“[J.T.]: He -- once.
“DUFFY: Okay.
“[J.T.]: Like one.
“DUFFY: Okay.
“[J.T.]: ([I]naudible) more like 21 average.
“DUFFY: Okay. And that’s an average. And then in a week’s time – I think we
talked about this –
“[J.T.]: In a week, ah --
“DUFFY: Just an average.
“[J.T.]: Ah – it’s jumpy. Sometimes within a week nothing would happen and
other times, one thing would happen, sometimes it would be like almost every day.”
Diaz also interviewed S.T. S.T. told Diaz that defendant grabbed his privates
approximately 10 to 20 times. The grabbing began when defendant made S.T. watch

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pornographic videos. S.T. told defendant, “‘Leave me alone,’” but defendant “would just
keep doing it.” S.T. was afraid to tell anyone because defendant made threats to kill him
and bury him in the desert. Defendant showed S.T. a dildo and told him that defendant
“could stick that one up . . . a hole up his butt,” and that “he would try to use it on [S.T.].”
On one occasion, defendant told S.T. to “suck his . . . penis,” but S.T. refused. He also
told Diaz that on one occasion in January 2003, he saw defendant pull J.T.’s pants down.
J.T. told S.T. that defendant had told him to give him a “head job” and that he was scared
of defendant. S.T. was in the fifth grade (the 2002-2003 school year) when J.T. first
talked to S.T. about defendant’s conduct. When defendant found out that S.T. and J.T.
had talked about “stuff,” defendant showed S.T. a gun and told him that if he ever told
anyone “about this,” he would kill him and bury him in the desert.
Duffy met with J.T. and S.T. again in late June 2004 “to clarify some things.” J.T.
told Duffy that the sexual acts with defendant began with the attempt by defendant to
have anal intercourse with J.T. while on a firewood gathering trip to Idyllwild in October
2003.
S.T. told Duffy that defendant rubbed either S.T.’s penis or his buttocks between
10 and 20 times. During some of these incidents, J.T. noticed that defendant had an
erection. In addition, defendant tried to use a lubricated dildo “on him” and that “it hurt.”
S.T. also told Duffy that on numerous occasions defendant “asked [S.T.] if he could
commit oral copulation on him.” S.T. said that this conduct began during a camping trip
in the summer of 2003.

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Physical examinations of the two children conducted on March 30, 2004, were
“normal” and did not reveal any injuries or scarring of the anus.
During a search of defendant’s room, police found three pornographic magazines,
a bag containing two dildos and lubricant, several pornographic videotapes, and one
DVD containing pornography.
Defendant was charged with two counts of aggravated sexual assault against J.T.
Count 1 is based upon the defendant’s use of a dildo to commit an act of sexual
penetration upon J.T. (§ 269, subd. (a)(5).) Count 2 is based upon the forced oral
copulation by defendant on J.T. (§ 269, subd. (a)(4).) Defendant was further charged
with two counts of lewd and lascivious acts upon S.T. by use of force, violence, duress,
menace, or fear (counts 3 and 4), and two counts of lewd and lascivious acts upon J.T. by
use of force, violence, duress, menace, or fear (counts 5 and 6). (§ 288, subd. (b)(1).)
At trial, White, Kurylowicz, and Duffy testified about their interviews with the
children. A videotape of Diaz’s interviews of the children was played for the jury and
transcripts of the interviews provided to the jurors.
J.T. and S.T. recanted their prior statements. J.T. testified that defendant had been
feeling J.T.’s privates and that he “willingly looked at magazines and watched videos
with [defendant].” He previously “believed that other things were happening,” but he
now believed that “most of those didn’t happen”; they “were dreams.” He said that these
dreams began about a month after he first told his friend that defendant was molesting
him.

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S.T. testified that he had previously told Kurylowicz, Duffy, Diaz, and others that
defendant had grabbed his privates, but said that “it never really happened.” He also
denied that defendant ever grabbed his buttocks or asked him to put his mouth on
defendant’s penis.
The prosecution presented a forensic psychologist, who provided expert testimony
about Child Abuse Accommodation Syndrome. According to the psychologist, children
will often recant prior statements of abuse because of fear of negative consequences, such
as the break-up of a family.
Over defense objection, the court permitted the prosecution to introduce testimony
from defendant’s former wife that in 1971 defendant had tied her up in a bedroom and
raped her.
Defendant presented no evidence.
ANALYSIS
A. Instructional Error on Count 2
Defendant contends that the court prejudicially erred in instructing the jury on
count 2. This count alleges that defendant committed aggravated sexual assault upon J.T.
under subdivision (a)(4) of section 269. Section 269 begins: “Any person who commits
any of the following acts upon a child who is under 14 years of age and 10 or more years
younger than the person is guilty of aggravated sexual assault of a child[.]” (§ 269, subd.
(a).) The statute then sets forth five such “acts” in separate subdivisions. Subdivision
(a)(4), upon which count 2 is based, provides: “Oral copulation, in violation of Section
288a, when committed by force, violence, duress, menace, or fear of immediate and

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unlawful bodily injury on the victim or another person.”5 (For ease of reference, we will
refer to the requirement that the act occur by “force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person” as the “force
element” or the “use of force.”) The elements of aggravated sexual assault of a child as
alleged in count 2, therefore, are: (1) the defendant committed oral copulation in
violation of section 288a by the use of force; (2) the victim was under 14 years of age;
and (3) the alleged victim was 10 or more years younger than the perpetrator. (§ 269,
subd. (a)(4); CALJIC No. 10.55.)
Defendant contends that the court’s instructions failed to instruct the jury that the
oral copulation occurred by the use of force, and that such error is prejudicial. The
Attorney General asserts that the jury was properly instructed on the force element, and
that any error was harmless. For the reasons that follow, we hold that while the
instructions were ambiguous, they were not reasonably likely to be applied in a way that
deprived defendant of his rights under the federal Constitution. Moreover, any error was
harmless beyond a reasonable doubt.
1. The Court’s Instructions
The court combined, to some extent, the instructions on both counts 1 and 2 as
follows: “Defendant is accused in Count One of a felony violation of section 269[,
5 Section 288a provides, in relevant part: “(a) Oral copulation is the act of
copulating the mouth of one person with the sexual organ or anus of another person. [¶]
. . . [¶] (c)(1) Any person who participates in an act of oral copulation with another
person who is under 14 years of age and more than 10 years younger than he or she shall
be punished by imprisonment in the state prison for three, six, or eight years.”

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subdivision] (a)(5) of the Penal Code, and in Count Two of a felony violation [of] section
269[, subdivision] (a)(4) of the Penal Code. [¶] Every person who commits any of the
following acts upon a child who is under 14 years of age and 10 or more years younger
than the person is guilty of the crime of aggravated sexual assault of a child in violation
of Penal Code section 269, subdivision (a): [¶] Count Two: Section 269[, subdivision]
(a)(4): Oral copulation in violation of Section 288a, when committed by force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on the victim or another
person. [¶] Count One: Section 269[, subdivision] (a)(5): A violation of subdivision (a)
of section 289 of the Penal Code.”6 (Italics added.)
The instructions to this point correctly set forth the statutory basis under section
269 for the crimes alleged in counts 1 and 2. In particular, with respect to count 2, the
force element is expressly stated.
The court’s instructions continued: “In order to commit this crime, each of the
following elements have to be proved: [¶] 1. A person committed a violation of
[section] 288a Count Two and/or [section] 289[, subdivision] (a) Count One; [¶] 2. The
6 There are some differences between the written instructions given to the jury
and the transcript of the oral instructions read to the jury. In particular, the oral
instructions reflect some confusion as to which count alleges a violation of which
subdivision of section 269. For example, the oral instructions recite the text of section
269, subdivision (a)(4) (on which count 2 is based), in connection with the instruction on
count 1, and erroneously state that count 2 is based upon section 269, subdivision (a)(5).
Our review of the instructions (as well as our quotations thereof) are of the written
instructions, which we presume guided the jury and control over any conflict with the
oral instructions. (See People v. Davis (1995) 10 Cal.4th 463, 542; People v. Rodriguez
(2000) 77 Cal.App.4th 1101, 1112-1113.)

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alleged victim was under 14 years of age; and [¶] 3. The alleged perpetrator was 10 or
more years older than the victim of the acts.” (Italics added.) With respect to section
288a and count 2, the court then instructed: “Every person who engages in an act of oral
copulation with another person who is under 14 years of age and more than 10 years
younger than he is guilty of the crime of unlawful oral copulation in violation of Penal
Code section 288a[, subdivision] (c)(1).” The court proceeded to define “oral
copulation,” then stated, with respect to section 288a: “In order to prove this crime, each
of the following elements must be proved: [¶] 1. A person engaged in an act of oral
copulation with an alleged victim; and [¶] 2. The alleged victim was under the age of 14
and more than 10 years younger than the other participant.”
In addressing the “elements [that] have to be proved” for count 2, the court failed
to mention that the violation of section 288a must occur by the use of force.
With respect to count 1 (sexual assault by sexual penetration against J.T.), the
court instructed the jury that a violation of section 289, subdivision (a)(1), requires an act
of sexual penetration accomplished by the use of force.
With respect to counts 3 through 6, the court instructed the jury that the charged
crimes of committing a lewd act with a child (§ 288, subd. (b)(1)) requires, among other
elements, the touching of a child by the use of force.
2. Analysis
Defendant focuses his argument on the portion of the instructions in which the
court expressly set forth the elements to be proved, which does not mention the
requirement that the alleged oral copulation be committed by the use of force. However,

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we do not consider jury instructions in isolation. Whether instructions are erroneous is
determined by considering the entire charge to the jury. (Estelle v. McGuire (1991) 502
U.S. 62, 72 [112 S.Ct. 475, 116 L.Ed.2d 385]; People v. Williams (1997) 16 Cal.4th 635,
675; People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149.) The absence of an essential
element in one instruction may be cured by other instructions. (People v. Burgener
(1986) 41 Cal.3d 505, 539, overruled on another point in People v. Reyes (1998) 19
Cal.4th 743, 753; People v. Crandell (1988) 46 Cal.3d 833, 873-874, overruled on
another point in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)
When the instructions are viewed as a whole, the instructions on count 2 are
ambiguous. As discussed above, in order to commit aggravated sexual assault of a child
under section 269, subdivision (a)(4), it is not enough to commit a violation of section
288a (which can occur without the use of force); the violation must be committed with
the use of force. (§ 269, subd. (a)(4).) The court initially read the text of the statute,
including the language of the force element, to the jury. However, when the court
proceeded to instruct the jury on the specific “elements [that] must be proved,” the court
failed to mention the force element. The recitation of the statutory language (which
includes the force element), followed by a description of the elements of the crime that
omit any reference to the use of force, created an ambiguity that potentially misdirected
the jury.7
7 “‘The word “misdirection” logically includes every kind of instructional error.
It seems manifest that incorrect, ambiguous, conflicting, or wrongly omitted instructions
may equally “misdirect” the jury’s deliberations.’” (People v. Wims (1995) 10 Cal.4th
[footnote continued on next page]

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“[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to
the level of a due process violation. The question is ‘“whether the ailing instruction . . .
so infected the entire trial that the resulting conviction violates due process.”’ [Citation.]
‘“[A] single instruction to a jury may not be judged in artificial isolation, but must be
viewed in the context of the overall charge.”’ [Citation.] If the charge as a whole is
ambiguous, the question is whether there is a ‘“reasonable likelihood that the jury has
applied the challenged instruction in a way” that violates the Constitution.’ [Citation.]”
(Middleton v. McNeil (2004) 541 U.S. 433, 437 [124 S.Ct. 1830, 158 L.Ed.2d 701];
accord, People v. Huggins (2006) 38 Cal.4th 175, 192.) In evaluating whether such a
likelihood exists, we consider the arguments counsel made to the jury. (Ibid.) This is
particularly appropriate when the prosecutor’s arguments resolve an ambiguity in favor
of the defendant. (Middleton v. McNeil, supra, at p. 438.)
Here, the jury was given one instruction that correctly stated that the crime alleged
in count 2 required the use of force, and another instruction that incorrectly fails to
mention the requirement of the use of force. The two instructions are not mutually
exclusive or necessarily inconsistent; the absence of any mention in the second
instruction of the use of force cannot reasonably be read as negating the requirement of
the use of force set forth in the first instruction. The jurors were also instructed that they
must “not single out any particular sentence or any individual point or instruction and
[footnote continued from previous page]
293, 314-315, overruled on another point in People v. Sengpadychith (2001) 26 Cal.4th
316, 326, quoting Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 579.)

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ignore the others,” and that they must “[c]onsider the instructions as a whole and each in
light of all the others.” We presume that the jurors followed these instructions and did
not ignore the first instruction that the crime alleged in count 2 requires the use of force.
When the instructions are read as a whole and in light of all the others, the first
instruction fills the gap left in the second instruction.
Moreover, the closing arguments by the prosecution make clear that the use of
force was required for both counts 1 and 2. In discussing the two counts together, the
prosecutor addressed the various means by which the use of force can be accomplished,
then stated: “By force, that means holding the boy. Keeping him from resisting, from
moving, from getting away. That is an act of force. Slapping the young man in the head
so he stops moving, that is an act of force. [¶] For either of these acts, really the only
force necessary to accomplish the act is just doing the act. The boy lays down, and he
can be orally copulated. Same with the dildo. [¶] Anything done to make the boy stay in
place by physical force is substantially different or greater than that which is necessary.
[¶] It applies really to the degree of cooperation that did or did not exist. [J.T.] did not
cooperate or acquiesce, if you will, until he was made to do so, either by threat or by
force. [¶] The oral copulation, the same situation we are talking about, being made to
put his mouth on [defendant’s] penis.” Such argument resolved any ambiguity in the
instructions as to the requirement of the use of force. (Middleton v. McNeil, supra, 541
U.S. at p. 438.) There is nothing in the arguments by either counsel that suggest that the
use of force was not an element of the crime.

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For the foregoing reasons, we do not believe there is a reasonable likelihood that
the jury applied the instructions in a way that deprived defendant of his constitutional
rights. Even if the instructions did violate the Constitution, we would find beyond a
reasonable doubt that the error did not contribute to the verdict. (See Chapman v.
California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]; Yates v. Evatt (1991)
500 U.S. 391, 404 [111 S.Ct. 1184, 114 L.Ed.2d 432], disapproved on another point in
Estelle v. McGuire, supra, 502 U.S. at p. 73, fn. 4.) The jury was unambiguously
instructed that the sexual penetration alleged in count 1 and the lewd and lascivious acts
alleged in counts 3 through 6 were committed by the use of force. As the prosecutor
argued to the jury, the evidence of the use of force by the defendant was not specific to
any particular incident but, rather, consisted of a background of physical force and threats
that permeated all of the sexual conduct between the defendant and the boys. The use of
force found by the jury to convict defendant of counts 1 and 3 through 6 cannot
reasonably be separated from the force necessary to convict defendant of count 2. The
jury verdicts show that the jury found the use of such force as to counts 1 and 3 through
6. Having found the use of force inherent in the sexual relationship between J.T. and
defendant in these counts, there is no basis upon which the jury could have concluded
that such force did not exist as to count 2. In finding the requisite force as to counts 1
and 3 through 6, the jury necessarily found the use of force as to count 2. Thus, even if
the ambiguous instructions on count 2 constituted a violation of due process, the error
could not have affected the verdict on count 2, and is therefore harmless. (See People v.
Lewis (2006) 139 Cal.App.4th 874, 884-888.)

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B. Admission of Defendant’s Statement Offering to Plead Guilty
At trial, the court admitted into evidence, over defendant’s objection, defendant’s
statements to Duffy about making a “low-term deal” to spend one year in custody, then
leave the state. Defendant contends that this constitutes prejudicial error. We hold that
the court did not abuse its discretion in allowing the statements into evidence.
The admissibility of defendant’s statement was addressed at a conference among
the court and counsel. Following argument, the court ruled that the statement was
admissible. The court framed the analysis as a question of “whether the offer to plead
guilty was part of the bona fide plea negotiations,” and concluded that the facts (as
presented in counsels’ argument) did not “demonstrate that this is a legitimate plea
negotiation.” The court further informed counsel that defense counsel would have “broad
latitude in cross[-]examining the officer about what led up to the statement, what was
said before, and to a lesser extent after the comments.”
We review a trial court’s evidentiary rulings for an abuse of discretion. (See
People v. Jablonski (2006) 37 Cal.4th 774, 805; People v. Guerra, supra, 37 Cal.4th at p.
1113.) “Under this standard, a trial court’s ruling will not be disturbed, and reversal of
the judgment is not required, unless the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.”
(Ibid.)
Evidence Code section 1153 provides: “Evidence of a plea of guilty, later
withdrawn, or of an offer to plead guilty to the crime charged or to any other crime, made
by the defendant in a criminal action is inadmissible in any action or in any proceeding of

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any nature, including proceedings before agencies, commissions, boards, and tribunals.”
This statute implements the policy of encouraging settlement of criminal cases and
candor among the participants in plea negotiations. (People v. Sirhan (1972) 7 Cal.3d
710, 745, overruled on other grounds in Hawkins v. Superior Court (1978) 22 Cal.3d 584,
593, fn. 7; People v. Tanner (1975) 45 Cal.App.3d 345, 351.) It applies, however, “only
to statements made in the context of bona fide plea negotiations.” (People v. Magana
(1993) 17 Cal.App.4th 1371, 1376.) “Bona fide plea negotiations include statements
made to the trial court and to the prosecuting attorney . . . .” (Id. at p. 1377; see, e.g.,
People v. Tanner, supra, at p. 351 [defendant’s letters to deputy district attorney were
inadmissible]; People v. Hamilton (1963) 60 Cal.2d 105, 112-114 [defendant’s offer to
plead guilty made to a member of the district attorney’s staff was inadmissible],
disapproved on other grounds in People v. Daniels (1991) 52 Cal.3d 815, 866.) The
statute does not apply to statements made to persons uninvolved and unnecessary to plea
negotiations. (People v. Magana, supra, at p. 1376; see also People v. Posten (1980) 108
Cal.App.3d 633, 648 [defendant’s offers to plead guilty to lesser crime made to police
officers were admissible].) Statements made to such third parties “are not part of the
bona fide plea negotiations as they cannot be seen as an attempt to influence the court or
the prosecutor to accept a particular offer.” (People v. Magana, supra, at p. 1377.)
Here, defendant made his statement to a police officer, not to someone within the
district attorney’s office or the court. Although Duffy was involved in the investigation
of the facts, the court could reasonably conclude that he was neither involved in nor
necessary to any plea negotiations. Indeed, defendant was not in custody and no charges

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had been filed against him at the time he inquired about making a “low-term deal.” The
inquiry appears to have been unsolicited. The record reveals extensive argument by
counsel on the issue and the trial court’s careful analysis of the matter. Its conclusion
that defendant’s statement was not made in the course of bona fide plea negotiations was
neither arbitrary, capricious, nor patently absurd. The ruling was not, therefore, an abuse
of discretion.
C. Juror Unanimity
Defendant contends that the court erred by failing to instruct the jury sua sponte on
unanimity. We agree. We find, however, that the error was harmless beyond a
reasonable doubt.
“When a defendant is charged with a single criminal act but the evidence reveals
more than one such act, the prosecution must either select the particular act upon which it
relies to prove the charge or the jury must be instructed that it must unanimously agree
beyond a reasonable doubt that defendant committed the same specific criminal act.
[Citations.] The unanimity requirement is constitutionally rooted in the principle that a
criminal defendant is entitled to a verdict in which all 12 jurors concur, beyond a
reasonable doubt, as to each count charged. [Citations.]” (People v. Brown (1996) 42
Cal.App.4th 1493, 1499-1500; see also People v. Russo (2001) 25 Cal.4th 1124, 1132.)
“When the trial court erroneously fails to give a unanimity instruction, it allows a
conviction even if all 12 jurors . . . are not convinced that the defendant is guilty of any
one criminal event . . . . This lowers the prosecution’s burden of proof and therefore

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violates federal constitutional law. [Citations.]” (People v. Wolfe (2003) 114
Cal.App.4th 177, 187-188)8
Count 2 (as discussed above) alleged that defendant committed oral copulation on
J.T., a child under the age of 14, by the use of force. The evidence supports at least two,
and as many as five, different acts of oral copulation by defendant on J.T., and at least
one act of oral copulation by J.T. on defendant. In his closing argument, the prosecutor
told the jury: “[T]he oral copulation [alleged in count 2] means either [J.T.] on the
defendant, defendant on [J.T.].” Here the defendant was charged with a single count.
The evidence disclosed numerous acts upon which the jury could rest its decision. And,
8 Unanimity instructions are set forth in CALJIC Nos. 4.71.5 and 17.01. CALJIC
No. 4.71.5 provides: “Defendant is accused [in Count[s] ____] of having committed the
crime of __________, a violation of section _______ of the Penal Code, on or about a
period of time between __________ and __________. [¶] In order to find the defendant
guilty, it is necessary for the prosecution to prove beyond a reasonable doubt the
commission of [a specific act [or acts] constituting that crime] [all of the acts described
by the alleged victim] within the period alleged. [¶] And, in order to find the defendant
guilty, you must unanimously agree upon the commission of [the same specific act [or
acts] constituting the crime] [all of the acts described by the alleged victim] within the
period alleged. [¶] It is not necessary that the particular act or acts committed so agreed
upon be stated in the verdict.”
CALJIC No. 17.01 provides: “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.”

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the prosecutor’s closing comments did not aid the jury in the selection process. A
unanimity instruction was called for.
Counts 3 and 4 each allege that defendant violated section 288, subdivision (b)(1),
by committing a lewd and lascivious act upon S.T. (a child under 14 years of age) by the
use of force sometime between August 1, 2003, and January 31, 2004. Counts 5 and 6
each allege a violation of the same statute by committing a lewd and lascivious act upon
J.T. between October 1, 2003, and January 31, 2004.
In his closing argument, the prosecutor explained that these counts were based
upon the touching of the boys while watching pornographic videos, “grabbing their balls,
rubbing their buttocks,” “[t]he attempts to force oral copulation,” “[t]he attempted
intercourse, the try whatever you want to call it. That is what this is.” The evidence
supports numerous such instances against the children. The prosecutor then told the jury:
“I am asking you to focus on the testicle. The rubbing of the testicle. Make it simple for
your determination. That is what the boys have told us. That is what they have talked
about during the course of watching these porn videos. [¶] Ask yourself, why did we
charge two counts for each boy on the [section] 288’s? Because within that time period,
pick the first time, pick the last time. You don’t have to worry about what is in between
or know the date.”
As with J.T., the evidence disclosed many different acts upon which the jury could
rest it decision. While the prosecutor’s argument somewhat focused on specific acts to
support the underlying convictions, it did not constitute an election of the crime for
purposes of the unanimity requirement. Telling the jurors to “pick the first time, pick the

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last time,” did not, in light of the evidence presented in this case, inform the jurors of the
particular act the prosecution was relying upon to prove the charges in counts 3 through
6. With respect to J.T. in particular, the “first time” is arguably the attempt at anal
intercourse during the trip to Idyllwild. Indeed, the prosecutor referred to this event as
the initial event: “Remember [J.T.] talked about the end of October, the 15th, Halloween
time for the Idyllwild. There is [sic] your markers.” However, J.T. also told Duffy that
the defendant’s sexual conduct started prior to the Idyllwild incident “when he just
started grabbing my nuts.” This grabbing apparently began while J.T. was in the sixth
grade -- prior to the six-month time period alleged in the charging pleading. The
circumstances surrounding the “last time” is also uncertain. J.T. told Kurylowicz that the
conduct lasted up until the day J.T. reported it to his friend at school. He told Diaz that
the most recent act of attempted anal intercourse occurred about one month before the
March 30, 2004, interview. Both of these dates -- the date it was first reported and the
date that is one month prior to the interview -- occurred after J.T. was 14 years old.
Defendant cannot be convicted of violating section 228, subdivision (b)(1) for acts
committed against a 14 year old. The prosecutor failed, therefore, to adequately identify
the particular acts he was relying on to support counts 5 and 6.
Nevertheless, the failure to sua sponte give a unanimity instruction was not
prejudicial. We review the court’s failure to give the unanimity instruction under the
Chapman standard. In determining whether the instructional error is prejudicial, “[t]he
important question is whether there was anything in the record by way of evidence or
argument to support discriminating between the . . . incidents such that the jury could find

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that [defendant] committed one . . . but not the other.” (People v. Brown, supra, 42
Cal.App.4th at p. 1502; see, e.g., People v. Davis (2005) 36 Cal.4th 510, 561.)
Relative to count 2, the only evidence at trial that the acts concerning J.T. did not
occur was J.T.’s recanting of his earlier statements. The defense was based entirely upon
the argument that the jurors should believe J.T.’s trial testimony and not his earlier
statements. If the jury agreed with the defendant, it would acquit defendant of the
charge; if, however, the jury rejected J.T.’s trial testimony, believing his earlier
statements, there would be no basis on which reasonable jurors could find that one act
occurred and not another.9 The same is true of the counts dealing with S.T. Once the
jurors rejected his trial testimony that the conduct did not happen at all, there was no
evidentiary basis for distinguishing between the incidents which comprised counts 3
through 6. Accordingly, the error was therefore harmless.
Defendant also argues that the failure to identify a particular act for the charges in
counts 5 and 6 made it possible for the jury to rely upon one act of sexual penetration to
convict defendant of the charge in count 1, or one act of oral copulation to convict
defendant of the charge in count 2, as well as the crimes charged in counts 5 and 6. The
contention is without merit. Even assuming defendant is correct that the jury might have
based its conviction on counts 5 and 6 upon the same acts it based the convictions on
9 Although there was evidence that the defendant’s conduct may have begun prior
to the dates set forth in the charging pleading and may have continued beyond J.T.’s 14th
birthday, there was evidence of numerous incidents that occurred during the time period
alleged in the charging pleading.

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counts 1 and 2, there is, generally, no bar to multiple convictions for a single act. (People
v. Montoya (2004) 33 Cal.4th 1031, 1034; § 954.)10
D. Admission of Evidence of Rape of Defendant’s Former Wife
Prior to trial, the prosecution sought an order permitting it to introduce the
testimony of Theresa W., defendant’s former wife, that defendant tied her up and forcibly
raped her in 1971. The court allowed the evidence pursuant to Evidence Code section
1108 over defendant’s objection. Defendant contends that the uncharged act bears no
similarity to the charged offenses and should not have been admitted under Evidence
Code section 352. We hold that the admission of the evidence was not an abuse of
discretion.
Evidence Code section 1101, subdivision (a), provides: “Except as provided in
this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character
or a trait of his or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct) is inadmissible when
offered to prove his or her conduct on a specified occasion.” Evidence Code section
1108 provides, in relevant part: “In a criminal action in which the defendant is accused
of a sexual offense, evidence of the defendant’s commission of another sexual offense or
offenses is not made inadmissible by [Evidence Code s]ection 1101, if the evidence is not
inadmissible pursuant to [Evidence Code s]ection 352.” (Evid. Code, § 1108, subd. (a).)
10 Although there is no bar to multiple convictions for a single act, there is a bar
to imposing punishment for more than one conviction of a single act. (See § 654.) Here,
the trial court did in fact stay the sentences on counts 5 and 6 pursuant to section 654.

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(There is no dispute that the prior rape of Theresa W. constituted a “sexual offense”
within the meaning of this statute.) “[Evidence Code] section 1108 was intended in sex
offense cases to relax the evidentiary restraints [Evidence Code] section 1101,
subdivision (a), imposed, to assure that the trier of fact would be made aware of the
defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility.
In this regard, [Evidence Code] section 1108 implicitly abrogates prior decisions . . .
indicating that ‘propensity’ evidence is per se unduly prejudicial to the defense.” (People
v. Falsetta (1999) 21 Cal.4th 903, 911.) When evidence of prior sex crimes is admitted
pursuant to this section, the jury may use the evidence “‘to find that defendant had a
propensity to commit such crimes, which in turn may show that he committed the
charged offenses.’ [Citation.]” (People v. Reliford (2003) 29 Cal.4th 1007, 1013.)
While trial courts may not deem such evidence unduly prejudicial per se, they
must still engage in a careful weighing process under Evidence Code section 352.
(People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.) “Rather than admit or exclude
every sex offense a defendant commits, trial judges must consider such factors as its
nature, relevance, and possible remoteness, the degree of certainty of its commission and
the likelihood of confusing, misleading, or distracting the jurors from their main inquiry,
its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden
on the defendant in defending against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as admitting some but not all of the
defendant’s other sex offenses, or excluding irrelevant though inflammatory details
surrounding the offense.” (Id. at p. 917.)

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We review evidentiary rulings made pursuant to Evidence Code section 1108 for
an abuse of discretion. (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) Such
discretion “‘“is not a capricious or arbitrary discretion, but an impartial discretion, guided
and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be
exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of
the law and in a manner to subserve and not to impede or defeat the ends of substantial
justice.”’ [Citation.]” (People v. Ortiz (2003) 109 Cal.App.4th 104, 117.)
Here, the factors identified by the Falsetta court appear to weigh in favor of
excluding evidence of the prior offense. The prior rape was against an adult woman and
committed by tying the victim up with a rope. The nature of the offense bears minimal
similarity to the sexual conduct alleged against the minor boys, J.T. and S.T. It was
remote in time, taking place about 33 years before the charged conduct. Moreover, the
commission of the prior rape must be considered somewhat uncertain because Theresa
W. never reported the crime to authorities and there was no corroborating evidence.
There was also the possibility that the evidence would at least distract the jurors from
their main inquiry -- determining the truth of the allegations concerning defendant’s acts
against J.T. and S.T. -- and that the jurors would want to punish defendant for the 1971
rape even if he was innocent of the charged offenses.
We cannot, however, conclude that the trial court abused its discretion in allowing
the evidence. The evidence was relevant to show that defendant was willing to and did
use force to commit a sexual offense. The facts that the prior victim was an adult woman
and the victims in the charged crimes are minor boys, and that the absence of evidence of

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bondage in the present case, are arguably of little significance; what matters is that
defendant has been willing to use force (by whatever means) to commit sexual offenses
against victims (of whatever gender and age) with whom he has an existing relationship.
Although the Falsetta court included similarity of the events as a factor to consider in
determining admissibility under Evidence Code sections 1108 and 352, the statute does
not require the kind of “specific similarity” required to admit evidence of prior bad acts
under Evidence Code section 1101, subdivision (b). (Historical and Statutory Notes, 29B
pt. 3, West’s Ann. Evid. Code (2006 supp.) foll. § 1108, p. 181; see, e.g., People v.
Ewoldt (1994) 7 Cal.4th 380, 402-403 [discussing varying degrees of similarity with
respect to analysis of admissibility under Evidence Code section 1101, subdivision (b)].)
Although the prior crime was remote in time, “the passage of a substantial length
of time does not automatically render the prior incidents prejudicial.” (People v. Soto
(1998) 64 Cal.App.4th 966, 991.) Other courts have found no abuse of discretion in
allowing evidence of prior sexual offenses that occurred 20 or 30 years before the
charged events. (See, e.g., People v. Branch (2001) 91 Cal.App.4th 274, 284-285 [30
years between acts]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years];
People v. Soto, supra, at pp. 977-978, 991-992 [approximately 20 and 30 years].) The
rape of Theresa W. was not necessarily any more inflammatory than the forcible attempts
of anal intercourse, oral copulation, and sexual penetration with a dildo upon minors that
are the subject of the present case.
To limit the possibility that the jury would be confused or misled by the evidence,
immediately following Theresa W.’s testimony, the court informed the jury that Theresa

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W.’s testimony was introduced for the purpose of showing that defendant engaged in a
sexual offense other than the ones charged in this case, then gave the jurors the following
admonishment: “If you find that [defendant] committed a prior sexual offense, and
whether you do or not is up to you, you may but are . . . not required to infer that
[defendant] has a disposition to commit sexual offenses. [¶] If you find that [defendant]
has this disposition, you may but you are not required to infer that he was likely to
commit and did commit the crimes for which he is accused. [¶] However, if you find by
a preponderance of the evidence that the defendant . . . committed a prior sexual offense,
that is not sufficient by itself to prove beyond a reasonable doubt that he committed the
charged crimes. [¶] If you determine an inference properly can be drawn from the
testimony of Ms. Theresa [W.], this inference is simply one item for you to consider,
along with all other evidence in determining whether the defendant . . . has been proved
guilty beyond a reasonable doubt of any or all of the charged crimes, unless I otherwise
instruct you. You must not consider this evidence for any other purpose.”
Even if we would have made a different ruling, for the foregoing reasons, we
conclude that the court acted within its discretion in allowing evidence of the prior rape.
Defendant also argues that the court erred in refusing to allow defense counsel to
question Theresa W. during cross-examination concerning Theresa W.’s hospitalization
for seizures that resulted from her discontinuation of prescription pain medication. The
hospitalization occurred over a two-week period within the six months prior to the trial.
The court held a hearing pursuant to Evidence Code section 402. During the hearing,
Theresa W. testified that the seizures caused her to have hallucinations. In response to

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questions from the court, Theresa W. testified that the seizures and the medication did not
interfere with her ability to remember past events, and that the events she described in
court were not the product of a hallucination. She further testified that the medication she
is now taking does not interfere with her ability to remember. Both counsel declined to
ask Theresa W. any questions. The court ruled that evidence of her hospitalization was
irrelevant. The ruling was not an abuse of the court’s discretion. There was no showing
that Theresa W.’s recent hospitalization or her medication had any effect upon her
testimony or was otherwise relevant.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ King
J.
We concur:
/s/ Hollenhorst
Acting P.J.
/s/ Richli
J.

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