PEOPLE v. WITTROCK

No. A146706.

THE PEOPLE, Plaintiff and Respondent, v. KENNETH LEA WITTROCK, Defendant and Appellant.

Court of Appeals of California, First District, Division Two.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

STEWART, J.

Following a jury trial, defendant and appellant Kenneth Lea Wittrock was convicted of nine counts of committing lewd acts on the body of a child under 14 (Penal Code, § 288, subd. (a)1), two counts of inducing a minor to perform prohibited acts (§ 311.4, subd. (c)) and one count of possession of sexual matter depicting a minor (§ 311.11, subd. (a)). For eight of the nine section 288 offenses, the jury found true the enhancement allegation that defendant had committed the offense against more than one victim. (§ 667.61, subds. (e)(4), (j)(2).) The jury acquitted Wittrock of one count of section 288, subdivision (a) (section 288(a)).

The court sentenced Wittrock to two consecutive prison terms of 25 years to life on two of the section 288(a) counts, as enhanced by the one strike law, section 667.61. It sentenced him to six additional concurrent terms of 25 years to life on the remaining enhanced section 288 counts. It sentenced him to an aggregate term of seven years, four months on the two section 311.4, subdivision (c) counts and a concurrent term of three years on the section 311.11, subdivision (a) count, which it stayed under section 654.

Wittrock raises two issues on appeal. First, he contends the trial court committed prejudicial error by giving a CALCRIM instruction that states that "[c]onviction of a sexual assault crime may be based on the testimony of a complaining witness alone." Second, he contends that the court erred in sending the jury back to engage in further deliberations because of an inconsistency in its findings relating to the one strike law enhancement. The first argument lacks merit, but we agree with Wittrock on the second. We therefore remand for a new sentencing hearing based on the jury's initial findings.

BACKGROUND

Wittrock was charged with multiple counts of lewd acts on a child under section 288(a),2 two counts of using a minor for a non-commercial sex act under section 311.4, subdivision (c),3 and one count of possessing matter depicting a minor engaging in or simulating sexual conduct under section 311.11, subdivision (a).4 The multiple victim enhancement provided in section 667.61, subdivisions (e)(4) and (j)(2) was charged for all but one of the section 288(a) offenses.5

The victims of Wittrock's crimes were his four step great-granddaughters, Jane Does 1 through 4, who, along with their brother and mother, lived with their great-grandmother and Wittrock for several months in 2014.

Jane Doe 1, who was 12 or 13 years old at the time of the crimes, testified to three occasions on which Wittrock told her to remove part of her clothing and proceeded to touch her vagina with his hand. Two occurred while they were at home, and one at a motel on a trip Wittrock took with the girls to Oregon. She also testified that he took photographs of her and her sisters while the girls were naked on multiple occasions. Wittrock told her not to tell anyone what happened "[b]ecause he would get in trouble."

Jane Doe 2, who was nine at the time of the crimes, testified that Wittrock told her and her sisters to pull down their pants so he could take pictures of them. He told her and her sisters not to tell anyone about the pictures. She also testified that on one occasion he started to massage her legs and then touched her vagina with his fingers, and on another occasion he made a gesture that involved putting his fingers by his mouth and sticking his tongue between them and told her it meant licking her vagina. She also testified that she had lied during an interview at the Children's Interview Center (CIC) when she had accused Wittrock of handcuffing and chaining her and her sisters and of raping her.

Jane Does 3 and 4, who were about seven and four years old, respectively, at the time of the crimes testified only briefly without providing significant substance.

A search of Wittrock's residence yielded a computer containing a number of deleted (and then retrieved) photographs of young girls between the ages of 16 and 20 who were nude or "scantily clad." The girls were in various poses, some bending over and some with their legs spread. The photos were deleted on August 5, 2014, close in time to when Jane Doe 1 told her mother what had happened and her mother called Wittrock a "pervert," packed her family's belongings and left the house.

Police also recovered Wittrock's cell phone, which contained photographs of Jane Does 1, 2, 3 and 4 posing nude or with their pants pulled down exposing themselves to the camera. Some photographs were taken at Wittrock's home, and others in July 2014 in Oregon. In some of the pictures, Jane Doe 4 was standing in front of the camera spreading her buttocks. In one, Jane Doe 3 was standing with her pants and underwear pulled down, touching her vagina. In others, Jane Doe 1 was seated on a chair with her legs spread, exposing her vagina and Jane Doe 3 had her pants down and her legs open to show her vagina. In another, Jane Doe 1 was naked, lying on her back and lifting her leg to expose her anus and vagina.

Wittrock testified that while the girls, their brother and their mother were staying with him and his wife (mother's grandmother), he and his wife paid for all of their expenses and mother never reimbursed them, that he drove the children to school every day and that he took the girls to Oregon to visit his parents' grave and to give the girls a trip to see something they had never seen before. He further testified that when he took the nude photographs of the girls, he did not do so for a sexual purpose, he did it out of "[s]tupidity," he did not pose them or tell them to pull down their pajamas, and "[t]hey were just goofing around . . . [and] . . . pulled down their pajamas and just stood there for a minute" so he took a picture of them. He denied posing the girls or telling them to get into the positions in which he photographed them. He took the photos spontaneously as the girls were being "silly" and spreading their buttocks. He did not recognize at the time he took the photos that they were inappropriate but thought about it later, realized they were inappropriate and deleted them.

Wittrock's wife, son, stepdaughter and a co-worker testified on his behalf. According to Ms. Wittrock, the girls' great-grandmother, Jane Doe 2 was dishonest and had accused others of touching her inappropriately, Jane Doe 1 "stretch[ed] the truth" sometimes and Ms. Wittrock was not present when her husband took the photographs. According to her daughter (Wittrock's stepdaughter), Wittrock spent most weekends with her three children when they were young, and she never saw any inappropriate behavior by him. Jane Doe 1 was not honest, but Wittrock was very honest and it was not in his character to be lewd or lustful toward children. Wittrock's son testified that his father was very loving and never acted inappropriately around children; nor was it in his character to do so. Wittrock's former supervisor and friend, with whom he had worked as a prison guard at San Quentin, testified that Wittrock did not have the character to be lewd or lustful toward children.

Dr. Friedman, a psychologist who evaluated Wittrock, testified that he suffered a mild neurocognitive disorder due to multiple etiology, including substance abuse, liver disease, a liver transplant, trauma from a motor vehicle accident and mild traumatic brain injury. He had PTSD as a result of a May 2014 traffic accident, and had an IQ of 77 putting him in the "mildly impaired range." He had some memory impairment. According to Dr. Friedman, Wittrock lacked an ability to recognize consequences of his actions, could be impulsive in this behavior and sometimes was able to recognize the inappropriateness of his conduct after the fact.

After hearing the evidence, the jury convicted Wittrock of three counts of lewd acts as to Jane Doe 1 (counts one through three), one count of using a minor for a non-commercial sex act as to Jane Doe 1 (count four), one count of lewd acts as to Jane Doe 3 (count five), one count of using a minor to create images of sexual conduct as to Jane Does 2, 3, and 4 (count six), two counts of lewd acts as to Jane Doe 2 (counts eight and nine), three counts of lewd acts as to Jane Doe 4 (counts ten through twelve) and one count of possessing matter depicting a minor in sexual conduct (count thirteen).6 It acquitted Wittrock of one count of lewd acts as to Jane Doe 2 (count seven). Initially, it returned a verdict in which it found "not true" the multiple victim enhancement under section 667.61, subdivisions (e)(4) and (j)(2) as to counts one and two, but found "true" the same enhancement as to all other lewd acts counts. After further instruction from the trial court and further deliberations, the jury returned its final verdict finding "true" the multiple victim enhancement for all of the lewd acts counts.

DISCUSSION

I.

Wittrock's Instructional Error Claim Lacks Merit.

Wittrock's first claim of error is based on two jury instructions the court gave regarding corroboration. The first, with which Wittrock does not quarrel, is CALCRIM No. 301, which states: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." The second, which is the instruction Wittrock attacks, is CALCRIM No. 1190, which states: "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone."

Before we address the merits of this argument, we turn first to the People's argument that the claim was "forfeited by failure to raise it at trial." Citing People v. Hillhouse (2002) 27 Cal.4th 469, the People contend that "[i]f appellant believed the standard instruction should have been modified he should have requested it." The problem with this argument is that Wittrock is not claiming CALCRIM No. 1190 should have been modified, but rather that it should not have been given at all. His argument is that CALCRIM No. 1190 "propp[ed] up the testimony of a complaining witness . . . with extra support" and thereby "improperly lighten[ed] the prosecution's burden of proof, when the proper principle ha[d] already been provided to the jury through CALCRIM No. 301."

Far from aiding the People's waiver argument, People v. Hillhouse refutes it. The court there rejected an argument by the People that a defendant who failed to object to an instruction regarding an element of the crime had waived the issue "to the extent defendant argues the court erred in giving [the instruction]." (Hillhouse, supra, 27 Cal.4th at p. 503.) Acknowledging that "[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial," the court observed that the defendant's argument was that the instruction misstated an element of the crime and should not have been given at all. (Ibid.) "Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review." (Ibid.) While the instruction here did not discuss a particular element of the crime, defendant's argument is that it lightened the burden of proof as to all elements of the crime. If it did, it would affect substantial rights of Wittrock and would not be subject to waiver for failure to object. (Ibid.; see also People v. Sattiewhite (2014) 59 Cal.4th 446, 474-475; § 1259.)

Turning to the merits, we begin with a California Supreme Court decision that Wittrock criticizes while implicitly acknowledging its pertinence to his instructional challenge. In People v. Gammage (1992) 2 Cal.4th 693 (Gammage), the defendant was convicted of forcible rape by acting in concert and oral copulation with a minor. (Id. at p. 696.) As in this case, the jury was given two instructions concerning the sufficiency of a single witness's testimony. The first, CALJIC No. 2.27, was general and much like CALCRIM No. 301; it stated: "`Testimony as to any particular fact which you believe given by one witness is sufficient for the proof of that fact. However, before finding any fact required to be established by the prosecution to be proved solely by the testimony of such a single witness, you should carefully review all the testimony upon which the proof of such fact depends.'" (Ibid., quoting former CALJIC No. 2.27 (4th ed. 1986 rev.).) The second, former CALJIC No. 10.21 and then current CALJIC No. 10.60, was specific to rape and in substance similar to current CALCRIM No. 1190, providing: "`It is not essential to a conviction of a charge of rape that the testimony of the witness with whom sexual intercourse is alleged to have been committed be corroborated by other evidence.'" (Gammage, at pp. 696-697, quoting former CALJIC No. 10.21 (4th ed. 1970 rev.) and CALJIC No. 10.60 (5th ed.).) The court granted review to resolve a conflict among appellate court decisions "over whether a jury in a sex offense case that is given [the more general instruction] should also be advised that the testimony of the complaining witness need not be corroborated." (Gammage, at pp. 695-696.)

Like Wittrock, Gammage contended that the specific sex offense instruction repeated the substance of the more general instruction, "and that, in combination with that instruction, it unconstitutionally `creates a preferential credibility standard for the complaining witness.'" (Gammage, supra, 2 Cal.4th at p. 700.) The Supreme Court disagreed, reasoning as follows:

"Although the two instructions overlap to some extent, each has a different focus. CALJIC No. 2.27 focuses on how the jury should evaluate a fact (or at least a fact required to be established by the prosecution) proved solely by the testimony of a single witness. It is given with other instructions advising the jury how to engage in the fact-finding process. CALJIC No. 10.60, on the other hand, declares a substantive rule of law, that the testimony of the complaining witness need not be corroborated. It is given with other instructions on the legal elements of the charged crimes.7 "Because of this difference in focus of the instructions, we disagree with defendant . . . that, in combination, the instructions create a preferential credibility standard for the complaining witness, or somehow suggest that that witness is entitled to a special deference. The one instruction merely suggests careful review when a fact depends on the testimony of one witness. The other tells the jury there is no legal corroboration requirement. Neither eviscerates or modifies the other. As we observed early in this century, `There was no singling out of the testimony of the prosecuting witness with a view of giving it undue prominence before the jury.' (People v. Akey [(1912)] 163 Cal. [54,] 56.) Nor do the instructions `dilute[] the "beyond a reasonable doubt" standard.' (People v. Adams [(1986)] 186 Cal.App.3d [75,] 79.) The instructions in combination are no less correct, and no less fair to both sides, than either is individually." (Gammage, supra, 2 Cal.4th at pp. 700-701.)

Also like Wittrock, Gammage argued that the specific sex offense instruction was originally adopted as a counterweight to a later discredited instruction that the testimony of a witness complaining of sexual assault should be viewed with caution, and that the disapproval of the latter meant the former was no longer needed. (Gammage, supra, 2 Cal.4th at p. 701.) Our high court again disagreed:

"Although the `historical imbalance between victim and accused in sexual assault prosecutions' has been partially redressed in recent years [citation], there remains a continuing vitality in instructing juries that there is no legal requirement of corroboration. Further, even if we were to assume, which we do not, that all juries are aware of the no-corroboration requirement, or would glean it from CALJIC No. 2.27 itself, no harm is done in reminding juries of the rule. "The jury is instructed that the prosecution must prove its case beyond a reasonable doubt. This places a heavy burden of persuasion on a complaining witness whose testimony is uncorroborated. CALJIC No. 10.60 does not affect this instruction but, in the words of People v. Hollis [1991] 235 Cal.App.3d [1521,] 1526, when all the instructions are given, `a balance is struck which protects the rights of both the defendant and the complaining witness.'" (Gammage, supra, 2 Cal.4th at p. 701.)

In Gammage, the California Supreme Court concluded by holding it was proper for a trial court to give both the general and the specific instruction in cases involving sex offenses. (Gammage, supra, 2 Cal.4th at p. 702.) In doing so, it rejected the same due process arguments Wittrock raises here. Wittrock criticizes Gammage, and suggests the instruction is no longer necessary because jurors no longer carry "the baggage of long-since-discredited archaic ideas about inherent suspicion surrounding rape charges" and cites the opinions of two justices who concurred but thought the instruction should be prohibited or discouraged. However, he cites no intervening decision by the California Supreme Court or any other court holding the same or similar instructions violate due process or are otherwise invalid. We are thus bound by Gammage to reject Wittrock's argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455)

II.

The Superior Court Erred in Directing the Jury to Deliberate Further to Address the Inconsistency in the Initial Verdict.

Wittrock contends the trial court erred when it ordered the jury to resume deliberations after it returned to the court room with verdicts that appeared inconsistent. In the verdict form, the jury initially found Wittrock guilty of all counts except count seven. It thus found him guilty of nine counts of lewd conduct on a child, including three as to Jane Doe 1, one as to Jane Doe 3, two as to Jane Doe 2 and three as to Jane Doe 4. The jury initially found the multiple victim special circumstance "not true" as to counts one and two but "true" as to all of the other seven section 288(a) counts. The judge then sent the jury back to deliberate further, explaining that the not true finding of the multiple victim enhancement on the first two counts and the true finding on the same enhancement as to the other counts seemed logically inconsistent.

Before doing so, the judge explained that "the law does not require that the—to the extent that there are multiple victims that those multiple victims all have to have been victims at the same time for the same offense" and that "so long as you find one other victim for a 288 offense other than the victim in the count that you are looking at. Then the multiple victim enhancement applies regardless of when that other offense may have been committed." He attempted to describe the inconsistency he saw as the jury's "finding that there are multiple victims with respect to certain of the Jane Does" "[b]ut not with respect to Jane Doe 1 even though you have found so far on the verdict form guilt with respect to one or more of the 288 counts on Jane Doe I, logically, if the finding of guilt on Count One is what your verdict is, you've also found that there is another victim of another 288 offense. Let's say Jane Doe X, then you have multiple victims. It doesn't matter when the offense took place." He then stated "I'm not telling you what you need to do, it's just that I perceive an inconsistency and all things being equal, what I would ask you to do is go back and reconsider whether or not there is an inconsistency that needs to be resolved."

The judge asked if the jury found his explanation confusing, to which one juror responded: "You are confusing. I think we thought it had has [sic] to be the same specific offense." The court responded: "And the answer to that question is `no.' If you have an offense for Jane Doe X, let's say, and you find a 288 violation, then the multiple victim enhancement applies. If you find the 288 violation for any other Jane Doe, right, on any other date, any other time, any other occurrence, as long as there is another count for another Jane Doe under 288. Okay. [¶] So then the multiple victim enhancement would continue to apply to both Jane Doe X and XI, but then if you have a third Jane Doe and you found an offense—288 offense had been committed with respect to that third Jane Doe, now you have three multiple victims and the enhancement applies to all counts relating to those Jane Does. [¶] So in this case you have four possible Jane Does and you have to look at each Jane Doe and decide, Is there another Jane Doe other than this Jane Doe who is also a victim of a 288 offense? If so, the enhancement applies to all of the offenses relating to those specific Jane Does." The judge again asked the jury if his explanation made sense, and one of the jurors said it was now "a little clearer." The court ended by saying "I'm just explaining to you that the verdict form appears to be inconsistent. [¶] What I will ask you to do is go back to the jury room as long as you need to sort of discuss what I just said and see if the verdict form in your view can be made to reflect what your actual decision was." The jury deliberated further and returned with a verdict in which it found the multiple victim enhancement true for all of the section 288 counts.

Defense counsel timely objected to this procedure, arguing that the court had "essentially directed a verdict in this case to find the multiple victim enhancement true as to at least Counts One, Two, and Three" and that "it's the Defense's position that the verdict should be accepted as it was originally laid out."

Wittrock renews this objection on appeal, arguing that the court had no authority to direct the jury to reconsider its findings on the enhancement. He contends that section 1161, on which the trial court relied in commenting on the inconsistency and sending the jury back to deliberate further, does not permit such comment or require further deliberation where there is a verdict of acquittal, and that acquittal includes a finding of "not true" on enhancement allegations. He cites People v. Carbajal (2013) 56 Cal.4th 521 (Carbajal) and, for another proposition, People v. Espiritu (2011) 199 Cal.App.4th 718 (Espiritu).

The People argue that section 1161 permitted the judge to comment on the inconsistency and require further deliberations in an attempt to resolve it. They disagree with Wittrock's contention that the court effectively directed a true verdict on the enhancement finding: "The court did not suggest that the jury should make any particular findings about the multiple victim allegations but only that it make sure the verdict forms accurately reflected their findings." The People distinguish Carbajal.

We agree with the People that the facts of Carbajal are somewhat complex and different from the facts here. Nonetheless, we believe the California Supreme Court's analysis in Carbajal supports Wittrock's argument, as do two earlier appellate court decisions. We therefore hold that section 1161 prohibited the trial court from sending the jury back to reconsider its verdict under the circumstances here and that the trial court erred in declining to accept the jury's verdict as originally returned.

We begin, prefatorily, with a brief discussion of section 667.61 and the statutory enhancement for multiple victims. The relevant subsections impose a mandatory sentence of 25 years to life on "[a]ny person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) upon a victim who is a child under 14 years of age. . . ." (§ 667.61, subd. (j)(2).) The offenses specified in subdivision (c) include a lewd or lascivious act on a child under 14 in violation of section 288(a), and the circumstances specified in subdivision (e) include that "[t]he defendant has been convicted in the present case . . . of committing [the offense] against more than one victim." (§ 667.61, subds. (c)(8), (e)(4).) (See footnote 5, ante.) "On its face, [the multiple victim enhancement in subdivision (e)(4)] applies to any conviction of a qualifying sexual offense when the defendant stands currently convicted of at least one other such offense against a different victim." (People v. DeSimone (1998) 62 Cal.App.4th 693, 697-698.) In People v. Stewart (2004) 119 Cal.App.4th 163, the court held that the multiple victim enhancement does not require that there be two or more victims of a single offense, but rather requires only that the jury find a defendant guilty of multiple offenses involving different victims in the same case. (Id. at pp. 171-172.) The jury here was so instructed, and Wittrock does not challenge the instruction.

Here in its initial, as well as its final, verdict, the jury found Wittrock guilty of nine separate violations of section 288(a): three against Jane Doe 1, one against Jane Doe 3, two against Jane Doe 2 and three against Jane Doe 4. We do not disagree with the trial court that the jury's rejection of the multiple victim enhancement for two of the section 288(a) counts as to Jane Doe 1 was inconsistent with its true finding of that enhancement for the section 288(a) counts against the other three victims. There would have been an inconsistency even if the jury had initially found none of the multiple victim enhancement charges true. If the jury had followed the instruction given, the guilty verdicts against Wittrock in this case for nine acts of sexual molestation in violation of section 288(a), one or more of which were committed against each of the four young girls, made inescapable the finding that "[t]he defendant has been convicted in the present case . . . of committing an offense specified in subdivision (c) [here lewd and lascivious acts on a child under 14 in violation of section 288(a)] against more than one victim." (§ 667.61, subd. (e)(4).) It was true for every section 288 count, once the jury found defendant guilty of violating that section for more than one of the Jane Doe victims. The question is whether the trial court was permitted to bring the inconsistency to the jury's attention and require it to deliberate further.

The answer lies in an understanding of section 1161, which provides in relevant part: "When there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the Court cannot require the jury to reconsider it." This section is one of several in which "[t]he Legislature has set forth in prescriptive detail the procedures that trial courts must follow in receiving a jury verdict." (Carbajal, supra, 56 Cal.4th at p. 530.)

Section 1161 distinguishes between a verdict of conviction and a verdict of acquittal in prescribing the trial court's duties. For a verdict of conviction that the trial court believes may have been mistaken, the court is permitted to explain its view and direct the jury to reconsider the verdict. For a verdict of acquittal, however, it is afforded no such leeway. Where there is a verdict of acquittal it "cannot require the jury to reconsider it." (§ 1161.)

"These provisions are intended to reduce the likelihood of a trial court unduly, even if inadvertently, influencing the jury to reach a particular outcome. (See People v. Guerra (2009) 176 Cal.App.4th 933, 943 (Guerra) [discussing risk of jury coercion `[g]iven the formality of the setting of a superior court, over which the trial judge presides in a commanding display of authority']; Bigelow v. Superior Court (1989) 208 Cal.App.3d 1127, 1134 [inferring from the statutory scheme the `basic principle[]' that `a trial court may not coerce a jury by rejecting its verdict [of acquittal] and requesting it to continue deliberating'].) The mechanical, prescriptive character of the process for eliciting and receiving a jury verdict reflects the Legislature's judgment that the risk of jury coercion outweighs the risk of jury error. The procedural requirements set forth in the statutory scheme apply regardless of whether a reviewing court can discern that there was no actual coercion of the jury by the trial court. The requirements are premised on the notion that the risk of coercion is enough to warrant strict adherence to clear and detailed procedures for receiving a jury verdict." (Carbajal, supra, 56 Cal.4th at p. 531.)

"Mere inconsistency does not provide a valid reason for courts to reject a jury verdict. As the high court explained in United States v. Powell (1984) 469 U.S. 57: `[A]n individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake. . . . But with few exceptions, [citations], once the jury has heard the evidence and the case has been submitted, the litigants must accept the jury's collective judgment. Courts have always resisted inquiring into a jury's thought processes, [citation]; through this deference the jury brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality.' (Id. at pp. 66-67.) For this reason, our courts have consistently held that `[a]s a general rule, inherently inconsistent verdicts are allowed to stand.'" (Carbajal, supra, 56 Cal.4th at p. 532.)

It has been said that "the state has no remedy when a jury acquits `in the teeth of both law and facts.' [Citation.] `If what went on in the jury room were judicially reviewable for reasonableness or fairness, trials would no longer truly be by jury, as the Constitution commands.'" (Guerra, supra, 176 Cal.App.4th at p. 942.)

Here, the inconsistency was between the jury's verdict finding untrue the multiple victim allegation as to counts one and two and finding true the multiple victim allegation as to the other seven section 288 counts. The untrue finding as to the multiple victim allegation for counts one and two was akin to an acquittal on a substantive count. (See People v. Avila (2006) 38 Cal.4th 491, 600 ["`if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both'"], italics added; Espiritu, supra, 199 Cal.App.4th at p. 727 [same]; Guerra, 176 Cal.App.4th at p. 941, fn. 2 [People did not dispute that not true verdict on enhancement allegations was equivalent to acquittal verdict on charges of substantive offenses for purposes of section 1161].) Yet the trial court here expressed concern that the untrue finding on those counts was inconsistent with the true finding on other counts, and required the jury to reconsider the matter.

It is true, as the People point out, that Carbajal, on which Wittrock heavily relies, did not address the precise situation we have here. Indeed, the circumstances the Supreme Court addressed in Carbajal were unusual. The trial court had sent the jury back to reconsider after it returned a verdict finding true a multiple victim enhancement but deadlocking on all charges involving the second victim. (Carbajal, supra, 56 Cal.4th at pp. 525-527.) When the jury again returned after briefly deliberating further, the court declined to accept its verdict, instead giving further instructions and sending it back to deliberate a third time. (Id. at pp. 527-529.) The Supreme Court held this was improper: "Having directed the jury to reconsider its initial verdict of conviction, the trial court could not again order further deliberations even if the court again believed the jury had made a mistake. Section 1161 makes clear that `if, after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the Court cannot require the jury to reconsider it.' (§ 1161.) At that point in the process, a court may poll the jury at either party's request. If any juror says that the verdict does not reflect his or her true intent, the court may send the jury back for further deliberations with additional instructions as the court deems necessary. (§§ 1163, 1164, subd. (a).) But no provision of the statutory scheme permits a court, after the jury's second deliberation, to refuse to hear a verdict it believes to be erroneous or to direct the jury to deliberate further without the declaration of one or more jurors that the announced verdict is in error." (Id. at p. 531.)

Despite its unique circumstances, we believe Carbajal resolves the question before us of whether the trial court was permitted to send the jury back for further consideration because its finding of untrue on the multiple victim enhancement for two counts was inconsistent with its true finding on the enhancement for seven others. Carbajal held that the only circumstances in which a court may decline to accept a jury verdict and send the jury back for further deliberations are those in which section 1161 specifically authorizes it to do so. As the court there stated: "[A]part from the limited circumstance specified in section 1161—where `it appears to the Court that the jury have mistaken the law . . .' in initially rendering `a verdict of conviction'—a trial court may not decline to accept a jury verdict, or refuse to hear the verdict, simply because it is inconsistent with another verdict rendered by the same jury in the same case." (Carbajal, supra, 56 Cal.4th at pp. 532-533, italics added.) Carbajal also states that when a jury reaches a verdict of acquittal that the court believes to be mistaken—whether initially or after deliberating a second time—the court must accept the verdict. (See id. at pp. 530, 531 ["`when there is a verdict of acquittal, the Court cannot require the jury to reconsider it'"], quoting § 1161 (twice); id. at p. 533 ["except as provided in section 1161, a trial court may not reject a jury's verdict and send the jury back for further deliberations based on the court's belief that the jury made a mistake"].)

Also implicit in Carbajal is that a finding of true on an enhancement allegation is a verdict of conviction and a finding of untrue is an acquittal within the meaning of section 1161. This is why, when the jury in Carbajal returned its initial verdict finding the multiple victim enhancement true and, in light of it having deadlocked on all counts regarding the second victim, that verdict appeared to be erroneous, the trial court was permitted to send the jury back for reconsideration. (See § 1161 ["When there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsider their verdict"].)8 It is also why, after having done so, when the jury returned with a not true finding on the enhancement (Carbajal, supra, 56 Cal.4th at p. 529), section 1161 did not permit the trial court to cause the jury to deliberate a third time: as the Court repeatedly stated, under section 1161, if, the jury returns "`a verdict of acquittal, the Court cannot require the jury to reconsider it.'" (Carbajal, at pp. 530, 531.)

Finally, also supporting this understanding of how section 1161 applies to enhancement findings are two court of appeal decisions, both of which are cited in Carbajal. (Carbajal, supra, 56 Cal.4th at p. 532, citing Espiritu; Carbajal, at pp. 531, 532, 533, 537, citing Guerra.) The first is a case Wittrock has cited that the People have failed to address, namely Espiritu. In that case, the defendant was charged with attempted murder and mayhem after stabbing his ex-wife repeatedly with a knife and choking her. (Espiritu, supra, 199 Cal.App.4th at p. 721.) The jury returned a verdict finding defendant guilty of the lesser included offenses of attempted voluntary manslaughter and battery with serious bodily injury, finding a bodily injury enhancement allegation true, and found a use of a deadly or dangerous weapon enhancement allegation untrue. (Id. at p. 722.) After polling the jurors, the judge inquired whether in finding the great bodily injury allegation true, the jury had found the injury was "`inflicted with something other than a knife,'" to which all of the jurors responded negatively. The trial court then sent the jury back "`to review your findings in terms of the deadly or dangerous weapon as to whether that is, in fact, your finding,'" and the jury returned a second verdict that found the weapon allegation true. (Id. at pp. 723-724.)

The Second District, in an opinion by Justice Mosk, held that the trial court erred in sending the jury back and refusing to accept the first verdict. (Espiritu, supra, 199 Cal.App.4th at p. 728.) The decision appears to rest on several grounds: first, if an acquittal on one count or not true finding on an enhancement is inconsistent with a conviction on another offense, effect is given to both (id. at pp. 726-27); second, the trial court had made it clear to the jury that it believed the not true finding was incorrect (id. at p. 727); and third, the trial court had "effectively controlled the verdict and implicitly directed a verdict of a true finding" on the weapon enhancement allegation. (Id. at p. 728.) Justice Turner concurred in the reversal, stating that in his view section 1161 requires the entry of a verdict or finding that indicates a jury's decision to acquit. (Id. at p. 728 (conc. opn. of Turner, P.J.).)

The second case is the Sixth District decision in Guerra. In Guerra, as in this case, the defendant was convicted on multiple counts of sexual molestation, including seven counts involving his daughter and one involving another child. (Guerra, supra, 176 Cal.App.4th at p. 936.) The jury initially found the defendant guilty of all eight counts but found not true the multiple victim allegations under section 667.61. (Guerra, at p. 936.) Finding the verdict inconsistent, the trial court asked the foreperson for clarification. (Id. at 936-938.) The foreperson informed the court that the jury had "misunderstood" and thought there had to be multiple victims for the specific charge or count. (Id. at p. 938.) The court sent the jury back to further deliberate after rereading the instruction on the enhancement. (Id. at pp. 939-940.) The jury returned new verdicts, still finding defendant guilty on all counts but this time finding the enhancement allegations true. (Id. at p. 940.)

In a unanimous decision, the Sixth District held this was error because since there had been "an acquittal in open court," by which it meant the "not true verdicts on enhancement allegations," it was "constrained to conclude . . . that . . . defendant [was] entitled to have the jury's later true findings on those enhancement allegations reversed." (Guerra, supra, 176 Cal.App.4th at p. 941 & fn. 2.) The court explained: "Section 1161 directs, in line with the foregoing legal principles, that when a problem arises the court's intrusion into the jury's time-honored and fundamental role must be limited. A jury's verdict of acquittal or not true may not be questioned by anyone else or in any other forum, and a trial court may not probe further into the jury's deliberations. `". . . [I]f an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both." [Citation.]' [Citation.] The system accepts the possibility that `the jury arrived at an inconsistent conclusion through "mistake, compromise, or lenity."'" (Id. at p. 943.)

The court outlined the proper procedure in a situation in which there is an inconsistency between a verdict of acquittal or not true and a verdict of guilty or true. The way to "protect defendant's right under section 1161 that `when there is a verdict of acquittal, the Court cannot require the jury to reconsider it,' while also protecting defendant's right under the same statute not to be convicted of molesting the second victim if the jury had intended to find him not guilty on that count," was for the trial court to poll the jurors in accordance with section 1163.9 (Guerra, supra, 176 Cal.App.4th at p. 944.) "If each answered that the verdicts and findings reflected the juror's individual verdicts and findings, then the court's task was complete under section 1161—the jury had rendered inconsistent verdicts and the court was required to accept and record all of them, thereby satisfying the rule that `"if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both."'" (Ibid.)

Guerra is directly on point, consistent with the principles set forth in Carbajal and Espiritu, and has not been criticized or undermined by subsequent authorities. Applying it here, we conclude that the trial court erred when it sent the jury back to deliberate further regarding the inconsistency in the jury's findings on the enhancements for different counts. Section 1161 did not permit the court to direct the jury to reconsider its not true finding on the multiple victim allegation for the first two counts, and despite any inconsistency between those findings and its true findings on the enhancement for other counts (or, for that matter, between its untrue enhancement findings and its guilty verdicts with respect to section 288 violations for all four victims) the jury's initial verdict should have been accepted.

We disagree with the People that there was no error because the trial court here purported not to tell the jury what "particular findings" it should make about the multiple victim allegations, but only directed it to "make sure the verdict forms accurately reflected their findings." As Justice Turner recognized in Espiritu, "Penal Code section 1161 requires the entry of a verdict or finding which indicates a jury's decision to acquit. The trial court was required to enter the not true finding; no ifs, ands or buts." (Espiritu, supra, 199 Cal.App.4th at p. 728 (conc. opn. of Turner, P.J.).) This is so regardless of whether there was jury coercion. (Ibid.; Carbajal, supra, 56 Cal.4th at p. 531; see also Guerra, supra, 176 Cal.App.4th at pp. 943-944.)

DISPOSITION

The judgment of conviction is affirmed. The true findings on the prior conviction allegations under Penal Code section 667.61 on counts one and two are reversed and the sentence is vacated. The case is remanded for a new sentencing hearing, in which the trial court is directed to resentence defendant in accordance with the views set forth herein.

RICHMAN, Acting P.J. and MILLER, J., concurs.

FootNotes


1. All statutory references are to the Penal Code.
2. Section 288, subdivision (a) provides in relevant part that "any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."
3. Section 311.4, subdivision (c) provides in relevant part that "[e]very person who, with knowledge that a person is a minor under the age of 18 years . . . knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years . . . to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image . . . involving, sexual conduct by a minor under the age of 18 years alone or with other persons . . ., is guilty of a felony. It is not necessary to prove commercial purposes in order to establish a violation of this subdivision."
4. Section 311.11, subdivision (a) provides in relevant part that "[e]very person who knowingly possesses or controls any matter, representation of information, data, or image, . . . knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state prison, or a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment."
5. Section 667.61, subdivision (j)(2) provides: "Any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life." Subdivision (e)(4) provides: "The following circumstances shall apply to the offenses specified in subdivision (c): . . . (4) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim." The offenses specified in subdivision (c) of section 667.61 include "[l]ewd or lascivious act, in violation of subdivision (a) of Section 288." (§ 667.61, subd. (c)(8).)
6. The counts one and two lewd and lascivious acts were based on a theory that the defendant touched Jane Doe 1 with the intent of arousing himself or the child, while all of the other lewd and lascivious acts were based on the theory that the defendant created photographs by causing the child to touch her own body, the defendant's body or the body of someone else with the intent of arousing himself or the child.
7. Wittrock points out that the instructions here were given "in direct sequence" and in the written version "combined on a single page." However, he does not contend that Gammage is distinguishable on that ground. If his position had been that the instructions were proper but should not have been given in sequence, there would be merit to the People's argument that he forfeited the error.
8. In Carbajal, the defendant conceded there was no error, and neither the People nor the court suggested there was any error, in the trial court's initial decision to send the jury back after it erroneously found the enhancement allegation true. (See Carbajal, supra, 56 Cal.4th at pp. 529, 530-531.)
9. Section 1163 provides: "When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answers in the negative, the jury must be sent out for further deliberation."

Comment

1000 Characters Remaining

Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases