PEOPLE v. WALSH

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent v. Carl Eugene WALSH, Defendant and Appellant.

No. F006316.

Decided: August 14, 1987

Frank O. Bell, State Public Defender, and Mark L. Christiansen, Deputy State Public Defender, Sacramento, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Jane N. Kirkland and Wanda Hill Rouzan, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

On July 26, 1985, an information was filed in the Merced County Superior Court charging appellant with 14 counts of lewd and lascivious conduct with a child under the age of 14 years. Following a two-day jury trial, appellant was found guilty of all 14 counts. Appellant was ultimately sentenced to a term of 34 years. A $10,000 restitution fine pursuant to Government Code section 13967, subdivision (a), also was imposed.

FACTS

This case involves various incidents of sexual molestation committed by appellant against several male children who either visited or lived in his home.

Thirteen-year-old M.W. testified he lived with appellant for approximately two years. During this time he slept with appellant in his bedroom. According to M.W., appellant would fondle M.W.'s penis and/or orally copulate him “[e]very other day.” When appellant would finish with M.W., he would masturbate. When other children were present, as was often the case, appellant would rub M.W.'s penis through his clothing. M.W. stated he never said anything to anyone because he was afraid of appellant.

Eleven-year-old F.E. testified he often spent the night at appellant's home. When he stayed over, F.E. would sleep on the couch. While staying over on May 1 or 2, 1985, F.E. was on his way to the bathroom when he observed appellant orally copulating M.W. in appellant's bedroom.

Nine-year-old R.S. described how appellant on three or four occasions asked him if he could touch R.S.'s penis. Appellant told R .S. he had done “it to [M.W.]”

Thirteen-year-old W.G. observed appellant rub M.W.'s penis through his clothing on more than one occasion. At least once appellant engaged in this conduct openly while W.G. watched television in his bedroom.

Ten-year-old F.W. and his sister, J.W., who was eleven years old at the time of trial, both testified that on February 1, 1985, their mother dropped them off at appellant's home because she had to go to Merced. At one point during the day, F.W. went into the bathroom to urinate. According to F.W. he was followed by appellant who began to fondle F.W.'s exposed penis. When he was finished, appellant took F.W. into his bedroom and gave him candy. Both F.W. and J.W. testified they observed appellant rub M.W.'s penis through his clothing.

DEFENSE

No formal defense was presented. However, during cross-examination, the children's motivations for testifying were questioned. At least two of the children indicated they were angry at appellant for not protecting them from molestation by another male who lived with appellant some of the relevant time.

DISCUSSION

Appellant makes three contentions on appeal. He argues there is not substantial evidence to sustain the convictions, the trial court failed to instruct properly, and the restitution fine was excessive and an abuse of discretion.

We find under the facts of this case that there was substantial evidence, that there was no instructional or other prejudicial error, and that the judgment should be sustained.

I

SUBSTANTIAL EVIDENCE SUPPORTS THE CONVICTIONS.

Appellant challenges the sufficiency of the evidence supporting a number of the convictions by arguing the corpus delicti of the crime was not established, that the evidence was insufficient, and because it was insufficient, he was denied due process. Appellant must fail on each aspect of this challenge.

Through a complicated analysis, appellant contends the corpus delicti of the crime of committing a lewd and lascivious act upon a child under the age of 14 years (Pen.Code, § 288, subd. (a))1 has not been established. Appellant believes the corpus delicti must be established by focusing on a particular offense charged, rather than trying to prove that a larger or generalized offense occurred.

What appellant is specifically referring to is the fact that the testimony indicates over a two-year period appellant molested M.W. on a consistent basis. Rather than charge appellant with one count for each specific violation of section 288, subdivision (a), which could be pinned down to a date, the district attorney charged 12 violations involving M.W. by breaking up the time period into months. For example, one count of committing a lewd and lascivious act upon the body of M.W. was alleged to have occurred anytime during the month of June 1984. The next count involved a similar act committed during the month of July 1984. The charges continue in a similar manner through count 13, which involves an act committed during the month of April 1985. Count 14, in the same manner, charges an act committed on M.W. in May 1984.

As to counts 1 and 2, appellant was convicted of lewd conduct upon F.W. on or about February 1, 1985, and upon M.W. on or about May 2, 1985. These are the only two counts where the act is tied to a specific date in the pleadings and by the evidence. However, as to count 11, there were independent eyewitnesses to the act being committed upon M.W. in February 1985, but the precise date is not known.

Appellant's challenge of the convictions based on a corpus delicti theory is inappropriate. The corpus delicti of a crime includes (1) the fact of the injury, loss, or harm, and (2) the existence of a criminal agency as its cause. (People v. Ramirez (1979) 91 Cal.App.3d 132, 137, 153 Cal.Rptr. 789.) The time frame is not an element of the crime for purposes of establishing the corpus delicti. Rather, time is a problem associated with pleading and proof, specifically with regard to a defendant's right to notice of the specific charge alleged and his or her ability to adequately prepare a defense. (See People v. Puckett (1975) 44 Cal.App.3d 607, 611, 118 Cal.Rptr. 884.) This problem of pleading and proof is what the court in People v. Williams (1901) 133 Cal. 165, 65 P. 323, relied upon by appellant, was concerned with. Again, for purposes of establishing the corpus delicti of the alleged crime, time is not an element.2

This leads to another challenge made by appellant under the guise of insufficient evidence. Specifically whether appellant was deprived of adequate notice of the charges against him, preventing him from presenting a meaningful defense.

“Notice of the specific charge against a defendant is the constitutional right of the accused. [Citation.] The defendant is entitled to be apprised with reasonable certainty of the nature of the crime charged so that he may prepare his defense and plead jeopardy in future prosecutions.” (People v. Puckett, supra, 44 Cal.App.3d at p. 611, 118 Cal.Rptr. 884.)

Under the rules governing criminal pleadings, the allegations in a count are considered sufficient if they contain, in substance, a statement the accused has committed a public offense therein specified. (§ 952.)3 Furthermore,

“[w]hen an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, or of the place where the offense was committed, or of the property involved in its commission, is not material.” (Pen.Code, § 956.)

A pleading will not be considered insufficient and proceedings and judgments based upon that pleading will not be affected on the basis of a defect in form or other imperfection, when the defect does not prejudice a substantial right of the defendant on the merits. (§ 960; People v. Paul (1978) 78 Cal.App.3d 32, 43, 144 Cal.Rptr. 431.)

The concern underlying all these rules and the cases interpreting them is that the words of a pleading give an accused notice of the offense which he or she is accused of committing. (People v. Paul, supra, 78 Cal.App.3d at p. 43, 144 Cal.Rptr. 431.)

[6] With the exception of two counts where specific dates and acts were alleged, the remaining counts alleged conduct that occurred within a stated period of time (approximately one month). Under the rules of pleading, this was sufficient.

Section 1004 provides in pertinent part:

“The defendant may demur to the accusatory pleading at any time prior to the entry of a plea, when it appears upon the face thereof either:

“․

“2. That it does not substantially conform to the provisions of Sections 950 and 952, and also Section 951 in case of an indictment or information; ․”

In People v. Jordan (1971) 19 Cal.App.3d 362, 97 Cal.Rptr. 570 the court concluded that literal compliance with section 952 will not insulate an accusatory pleading from demurrer if

“such compliance fails to give the accused constitutionally adequate notice․ [ ] Here the problem relates to the remainder of the constitutional requirement—whether this indictment gives adequate notice against what defendants must defend and whether there is sufficient certainty to allow a future plea in bar. Compliance with section 952 does not necessarily overcome a due process attack [citation].” (Id. at p. 369, 97 Cal.Rptr. 570.)

The court went on to examine California's system of criminal pleading; the court's comments are helpful in clarifying the parameters of a defendant's duty to demur.4

“California's system of criminal pleading under section 952 relies in part upon the transcript of the grand jury hearing or preliminary examination which must be furnished to the defendant to inform him of particular circumstances of his offense not shown by the accusatory pleading [citations]․

“Since the constitutional application of section 952 relies in part upon notice afforded by the transcript, it follows a demurrer under section 1004 for failure of the indictment to substantially conform to section 952 contemplates testing the adequacy of the notice to defendant by allegations in the language of the statute when viewed in light of the transcript.” (Id. at pp. 369–370, 97 Cal.Rptr. 570; see also People v. Tolbert (1986) 176 Cal.App.3d 685, 690, fn. 2, 222 Cal.Rptr. 313.)

In light of these principles of California pleading, we cannot perceive any incurable due process impediment to informations which charge a criminal defendant with multiple counts of the same offense so long as the information informs the defendant of the nature of the conduct of which he is accused and the evidence presented at the preliminary hearing informs him of the particulars of the offenses which the prosecution may prove at trial. As Justice Sims points out in his concurring opinion in People v. Gordon (1985) 165 Cal.App .3d 839, 870–871, 212 Cal.Rptr. 174:

“These rules make it clear that an information plays a limited but important role: it tells a defendant what kinds of offenses he is charged with (usually by reference to a statute violated), and it states the number of offenses (convictions) that can result from the prosecution. But the time, place and circumstances of charged offenses are left to the preliminary hearing transcript; it is the touchstone of due process notice to a defendant.

“In light of the notice function played by the preliminary hearing transcript, a prosecutorial election is unnecessary to advise defendant of the criminal acts he must defend against. When Williams [People v. Williams (1901) 133 Cal. 165, 65 P. 323] asks, ‘how could he defend when he was not informed as to what particular offense, out of hundreds testified to by the prosecutrix, he was to be tried?’ (citation), the modern answer is that, at a minimum, a defendant must be prepared to defend against all offenses of the kind alleged in the information as are shown by evidence at the preliminary hearing to have occurred within the timeframe pleaded in the information.”

So long as the evidence presented at the preliminary hearing supports the number of offenses charged against a defendant and covers the timeframe or timeframes charged in the information, a defendant has all the notice the Constitution requires. Should a defendant in such circumstances feel the lack of greater specificity hampers his ability to prepare a defense, he may demur; to the extent the success of the demurrer depends upon an offer of proof concerning his intended defense, making such offer in camera ensures the defendant would not be compelled to disclose prematurely his defense strategy to gain the constitutionally adequate notice of the charges against him to which he is entitled. (Compare People v. Collins (1986) 42 Cal.3d 378, 393–394, 228 Cal.Rptr. 899, 722 P.2d 173.) The failure of a defendant to demur will constitute a bar, under established and long-standing principles of waiver, to a later assertion on appeal that any vagueness in the information hindered his ability to defend.

The instant appellant did not demur or ask for an in camera hearing. Appellant cannot now complain of lack of notice affecting his ability to defend.

Finally, appellant challenges the sufficiency of the evidence supporting the convictions in counts 3 through 10 and 12 through 14. Appellant points to the fact that the only evidence indicating these acts occurred consists of M.W.'s testimony that appellant's acts occurred “every other day” for a period of time encompassed within the pleadings.5

We deem it important to set out portions of M.W.'s testimony contained in 32 pages of his testimony in the reporter's transcript. On direct examination, M.W. testified:

“Q And when did you start staying there?

“A On ‘I’ Street?

“Q When did you first start staying there; do you know?

“A No, I don't.

“Q How long ago?

“A About two years ago.

“Q What grade were you in?

“A Seventh.

“․

“Q Now, did something start happening between the two of you when you started living there?

“A Yes.

“Q Tell the jury what that was.

“A Well, he started playing with my penis.

“Q Would that be while you were in bed?

“A Yeah.

“Q Did you say yes or no, one way or the other, or you just didn't think one way or the other?

“A I didn't say anything, because I was scared.

“Q All right. How did he play with your penis?

“A He just played with it.

“Q What else—what did he do?

“A He just played with it.

“Q What else—what did he do, explain.

“A He sucked it.

“Q How often would he do this?

“A Every other day.

“Q Did you count the days, or you're just estimating?

“A Just estimating.

“․

“Q When he stopped suckking [sic ] your penis, what would he do?

“A He's [sic ] turn over and play with his.

“Q Would he do something, would something happen to him?

“A Yeah.

“Q What?

“A He'd come.

“Q What do you mean by ‘coming’?

“A He came.

“Q Did something come out of his penis?

“A Yes.

“Q Did this continue for about two years?

“A Yes.

“Q When did it stop?

“A A day before we got picked up.

“Q Who picked you up?

“A Jean Kanoyer.

“Q The detective from the Los Banos Police Department?

“A Yes.”

The standard for reviewing the sufficiency of the evidence is well-established. When reviewing a conviction of guilt, a reviewing court “ ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ “ (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.) When conducting this review of the whole record, the court must determine whether it discloses substantial evidence. (Id. at p. 578, 162 Cal.Rptr. 431, 606 P.2d 738.) Substantial evidence consists of evidence “which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Ibid.)

The allegations of the information basically charged a series of specific acts broken up by months. M.W. testified he lived with appellant for a two-year period. During this time he slept with appellant in his bed. Every other day, appellant would either orally copulate M.W. or fondle his penis. When other children were there, appellant would often rub M.W.'s penis through his pants or undershorts. W.G. testified he saw appellant touch M.W.'s penis through his pants on more than one occasion. F.W. testified he observed appellant touch M.W.'s penis through his pants. J.W., on at least one occasion, watched appellant rub M.W.'s penis through his clothing while M.W. sat on appellant's lap.

Applying the above standards in the light of the evidence presented, we find there was sufficient evidence to support the conviction as to each count. In People v. Osuna (1984) 161 Cal.App.3d 429, 207 Cal.Rptr. 641, the defendant was convicted of one count of lewd and lascivious conduct and one count of forcible rape. The two offenses were alleged to have occurred “․ during the period July 1–31, 1981.” No specific dates were alleged. (Id. at p. 432, 207 Cal.Rptr. 641.) The only significant testimony at the trial consisted of the minor's testimony that every time her mother left her at home with the defendant, he molested or raped her. (Ibid.) The victim's mother testified she left her daughter with the defendant twice a week. The mother was able to recall, with any degree of specificity, only one day when she went to a reception. (Ibid.) The Osuna court felt the combination of the mother and daughter's testimony was sufficient to support the conclusion the minor had been molested. (Id. at p. 433, 207 Cal.Rptr. 641.) Presiding Justice Trotter speaking for the court stated:

“Although Janet could not recall the exact dates or details of any of these occurrences, the gist of her testimony was they occurred frequently. She had difficulty in placing any of the incidents in proximity to any other events from which a date or dates could be established.” (Id. at p. 432, 207 Cal.Rptr. 641.)

The court further stated:

“Mrs. R.'s testimony, coupled with Janet's statement Osuna sexually molested her every time she was left alone with him, establishes she was molested in July 1981. When a defendant does not raise a specific alibi defense, the prosecution need only prove the act was committed before the filing of the information and within the period of the statute of limitations. [Citations.] The jury was properly instructed it was not necessary the proof show a crime was committed on a precise date.

“Osuna denied molesting Janet at all during July 1981. Since he did not raise an alibi defense he was neither prejudiced nor misled, and the prosecution was only required to show a crime had occurred sometime between July 1 and July 31, 1981. We are satisfied the jury had sufficient evidence from which to infer a criminal act took place on at least one day during the month of July.” (Id. at p. 433, 207 Cal.Rptr. 641.)

We can see no difference between the type of evidence presented in the instant case and that in Osuna.

We conclude appellant was convicted on sufficient evidence. The jury was effectively asked to determine if section 288, subdivision (a), had been violated between certain dates within separate months. The victim testified explicitly that appellant had “․ started playing with my penis,” and, “[h]e sucked it.” Furthermore, he testified this happened “[e]very other day.” Surely, with such precise testimony the prosecution should not fail because the young victim cannot describe the same precise act occurring on a precise occasion or on or about a precise day in each month. “Every other day” should be sufficient as to time, and his descriptions should be sufficient to describe an act in clear violation of section 288, subdivision (a).

II

FAILURE TO GIVE A UNANIMITY INSTRUCTION DOES NOT REQUIRE REVERSAL IN THIS CASE.

The trial court in this case failed to give either CALJIC No. 17.016 (instructing the jury it had to agree the defendant committed the same act or acts), or CALJIC No. 4.71.57 (informing the jury it must be unanimous on the commission of the same act or acts constituting the crime within the alleged time period). Appellant contends the error was so prejudicial reversal is required. He cites People v. Gordon, supra, 165 Cal.App.3d 839, 212 Cal.Rptr. 174 and other cases to substantiate this position.

“[W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01 or 4.71.5 or their equivalent that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.” (Id. at p. 853, fn. omitted, 212 Cal.Rptr. 174.)

We are aware of the longstanding view that where the prosecution charges one offense, but presents evidence of more than one act, each of which acts constitutes the offense, it must elect which of those acts it relies upon for conviction. The rationale is that then there is assurance the jury will unanimously agree the defendant committed a certain act and is thus guilty of the crime charged. (See People v. Castro (1901) 133 Cal. 11, 13, 65 P. 13, and People v. Williams, supra, 133 Cal. 165, 168, 65 P. 323.)

The Castro and Williams courts were also concerned about the necessity of protecting the defendant's right to know what specific crime he was accused of so he could prepare his defense. We have already discussed this problem above.

The Williams case more nearly parallels the instant case because though the defendant was accused of only one rape of a 13–year–old child, the victim's testimony was that the act was repeated numerous times over a four-month period when the child lived with the defendant. No election was made of one act and the jurors were not told “․ they must all agree that some specifically described act had been performed.” The jurors were told, however, that if they found the defendant had had sexual intercourse with the child any time within three years before the indictment, they must find him guilty. The court under these circumstances reversed the judgment of conviction.

This strict requirement has an aura of simple and essential justice about it. But we believe the continuing enormity of multiple acts committed upon children, as we see more frequently today, dictates a closer look at the very practical problems created by resident sex offenders against children. Multiple sex offenses committed by adults upon immature and inarticulate children over a long period of time are very likely to result in an amalgamation of the crimes in the child's mind. The child is unlikely to be able to give any testimony approximating the date of any one separately describable offense even in the uncomplicated case. Where the number of offenses is so numerous even an adult would not be able to count them, the child's testimony will often be reduced to a general, and customarily abbreviated, recitation of what happened on a continuing basis.

Where no one act, usually committed in privacy, can be described in isolation, a strict application of this rule can insulate the most egregious child molester from justice. On the other hand, the one-time offender faces the most certain chance of being brought to justice. Under the circumstances of this case, a meaningful election by the prosecutor was impossible and therefore not required.

We note that the court in Williams apparently was not confronted with the type of evidentiary situation we describe and are confronted with in the instant case. The court there was concerned with sexual intercourse with the 13–year–old female victim. Neither the trial court nor the indictment specified any limited time period other than the expansive three-year statute of limitations. The Williams court noted, “In addition to this sweeping general assertion, many alleged acts were specifically described, with circumstances of time, etc.” Thus in Williams the victim was able to testify as to the time and circumstances of particular acts. Although the victim in the instant case was not able to do so, the allegations were broken up into limited periods within which the separate crimes were alleged to have occurred. Therefore, the reason for the rule enunciated in Williams does not pertain here.

In the Castro case, the defendant was convicted of rape of a victim “․ under the age of consent.” The actual age of the victim is not stated. The crime was alleged to have been committed on June 30, 1899. At the trial, four separate acts of sexual intercourse were testified to by the victim as occurring over a period of several months, none of them being on June 30, 1899. The court stated that while evidence of the several acts was admissible to show the defendant's disposition toward the prosecutrix, it was incumbent upon the prosecution to elect the particular act it relied upon as constituting the alleged crime. This appears to be a prosecution for what is now called unlawful sexual intercourse because the female is under the age of consent. (§ 261.5.) Because a specific date was alleged and four separate acts over several months were testified to by the victim, the circumstances demanded the jury have more direction. (People v. Castro, supra, 133 Cal. at p. 13, 65 P. 13.)

As opposed to the prosecutor's failure to select and prove one separate, identifiable act, we now turn our attention to the alleged failure of the jury to unanimously agree upon one single act as constituting the crimes alleged in each of counts 3 through 14.

The courts have dealt with this problem under various factual considerations. Again we note the differences in those cases from the case before us. In People v. Gordon, supra, 165 Cal.App.3d 839, 212 Cal.Rptr. 174, the court was confronted with testimony of a child concerning two specific acts of sodomy. The jury was not instructed in the language of CALJIC No. 17.01. The court stated preliminarily:

“We note also that the ‘continuous course of conduct’ exception to the ‘either/or’ rule is not applicable here. This exception arises when the criminal acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] Thus, ‘[s]eparate acts may also result in but one crime if they occur within a relatively short time span․’ [Citation.] In this case, there is absolutely no evidence concerning the timing of the two acts of sodomy, except that they allegedly occurred between 1978 and August 1979 and that one may have occurred during a camping trip in July 1979.” (People v. Gordon, supra, at pp. 854–855, fn. omitted, 212 Cal.Rptr. 174.)

The court later found the failure to give CALJIC No. 17.01 was error requiring reversal. It quoted from People v. Diedrich (1982) 31 Cal.3d 263, 282–283, 182 Cal.Rptr. 354, 643 P.2d 971, as follows:

“ ‘The next question is whether the error was prejudicial. We feel bound to hold that it was. This is not a case where the jury's verdict implies that it did not believe the only defense offered. Diedrich's defenses differed: As far as the Jolly Fox offer is concerned, it consisted of a simple denial. The Remington transactions were “explained.” Having in mind that the proof of the Jolly Fox offer depended, essentially, on the testimony of a single immunized witness and that the proof of bribery via the Remington transaction was somewhat circumstantial, we feel bound to conclude that the error was prejudicial.’

[Citation.] Under the Diedrich analysis, the test for harmless error is whether the case is one in which the jury's verdict necessarily implies that it did not believe the only defense offered. [Citations.]” (People v. Gordon, supra, 165 Cal.App.3d at p. 855, 212 Cal.Rptr. 174.)

The Gordon court then recognized defendant, who testified, had presented two defenses, only one of which applied to both alleged acts; that the victim had described factual differences between the two alleged acts, and under such circumstances there was no way to know whether the jury had rejected one defense and not the other, nor whether it believed one or both acts occurred in returning a guilty verdict. (Id. at pp. 855–856, 212 Cal.Rptr. 174.)

We do not dispute that in the typical case where multiple acts demonstrate separate evidentiary foundations for the verdict, the law requires the jury be told its verdict has to be based on the same set of facts. (See People v. Metheney (1984) 154 Cal.App.3d 555, 563, 201 Cal.Rptr. 281.) We agree that prejudice resulting from errors of this nature is measured under the test of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.

The underlying policy reasons for requiring a unanimity instruction when no election between offenses has been made by the prosecution must be kept in mind. The instruction tells the jury that the verdict must be unanimous. (People v. Deletto (1983) 147 Cal.App.3d 458, 471, 195 Cal.Rptr. 233.) Furthermore, the instruction ensures that the jury not only agrees on one specific act, but also that it does so beyond a reasonable doubt. (Id. at pp. 471–472, 195 Cal.Rptr. 233.) Proof beyond a reasonable doubt is part of the due process rights constitutionally guaranteed to a defendant.

Assuming, arguendo, a unanimity instruction should have been given here, we do not believe the failure to do so was prejudicial under the circumstances of the instant case. The failure to give a unanimity instruction has been found harmless where the evidence indicates only one defense was presented. In these cases the rationale is that because there was no attempt to distinguish between offenses or evidence presented, no basis exists for believing one act occurred and not another, and therefore, the jury necessarily rejected the only defense offered. (See People v. Diedrich, supra, 31 Cal.3d 263, 283, 182 Cal.Rptr. 354, 643 P.2d 971; People v. Deletto, supra, 147 Cal.App.3d at p. 466–467, 195 Cal.Rptr. 233.) This group of cases is applicable to the facts of this case. The difference here is the fact that no formal defense was presented.

In Diedrich and Deletto, and other cases using the same analysis, the focus has been on the facts in an effort to determine what the jury accepted or rejected in light of the defense offered. For example, the Deletto court considered carefully the defense that actually was presented in resolving the case. The defense in the Deletto case was that generally the defendant had not committed the acts. (People v. Deletto, supra, at pp. 467–468, 195 Cal.Rptr. 233.) This was argued by presenting evidence that the child was encouraged to lie and that an individual with past convictions for lewd and lascivious conduct had lived in the house during the charged period. The defense made no effort to distinguish between the various acts testified to by the minor. (Id. at p. 468, 195 Cal.Rptr. 233.)

“This is not a case in which different witnesses testified as to one incident but not the other or where different items of real evidence were introduced to prove one act but not the other, so that the jury might have distinguished between the credibility of different witnesses or the weight to be given various items of real evidence. [Citations.] In the instant case, only one witness, the minor, testified about the acts in question; no real evidence was admitted.” (Id. at p. 466, 195 Cal.Rptr. 233.)

Based on the record, the Deletto court found that the verdict implied the jury did not believe the only defense offered. (Id. at p. 468, 195 Cal.Rptr. 233.) Therefore, it held a failure to give CALJIC No. 17.01 was only harmless error. Our courts have held more than once that although CALJIC No. 17.01 should have been given sua sponte, a failure to do so was only harmless error. This position was stated clearly in People v. Parsons (1984) 156 Cal.App.3d 1165, 1174, 203 Cal.Rptr. 412:

“The Supreme Court dealt with the failure to give CALJIC No. 17 .01 as error in People v. Diedrich, supra, 31 Cal.3d 263 [182 Cal .Rptr. 354, 643 P.2d 971], where the defendant's defenses to the charge differed. The [c]ourt delineated an instance where failure to instruct CALJIC No. 17.01 is harmless error. ‘[A] case where the jury's verdict implies that it did not believe the only defense offered.’ (Id. at p. 283 [182 Cal.Rptr. 354, 643 P.2d 971].)

“In this case, we find that the appellant was unable to proffer any defense, but merely put the People to their proof. As was held in People v. Gonzalez, supra, 141 Cal.App.3d at page 792 [190 Cal.Rptr. 554] footnote 6: ‘Where the jurors cannot disagree concerning the defense offered, [the authorities] treat the lack of an instruction as “harmless error.” ‘ (Accord People v. Deletto (1983) 147 Cal.App.3d 458, 473 [195 Cal.Rptr. 233]․)

“The jurors, therefore, could not have reasonably disagreed as to which act the appellant was guilty of and yet convict him, simply because there was no defense proffered to any one or more items of stolen property received. So although CALJIC No. 17.01 should have been given, the failure to do so sua sponte was merely harmless error.” (Id. at p. 1174, 203 Cal.Rptr. 412.)

Important to a resolution of the question of whether the assumed error in failing to give a unanimity instruction requires reversal, is a reference to the recent United States Supreme Court case of Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460. There the court held that if a defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that other errors are subject to a harmless error analysis. (Id. 106 S.Ct. at pp. 3106–3107.) This case is a strong deterrent to per se reversals where the realities of the situation do not require such drastic action. It is ample authority to vindicate any alleged error here.

In this case all we have before us is prosecution evidence that appellant molested M.W. regularly. There was no attempt by either the prosecution or the defense to differentiate one offense from the other. The defense limited its attack on the evidence to cross-examination when credibility and motivations were challenged.

Moreover, the jury was instructed not only that it must find guilt beyond a reasonable doubt (CALJIC No. 2.90 (1979 Rev.)), but also that each count charged a distinct offense which must be decided separately (CALJIC No. 17.02 (1979 Rev.)). The jury's verdict necessarily implies it did not believe the only defense offered. (See People v. Diedrich, supra, 31 Cal.3d at p. 283, 182 Cal.Rptr. 354, 643 P.2d 971.) There simply was no reasonable probability of a different result if the instruction had been given.8

In cases such as the instant one we find it should not be reversible error to fail to elect where no election is possible, nor, in the alternative, to fail to give CALJIC No. 17.01 and/or No. 4.71.5 when to do so, in light of the facts, would be in conflict with common understanding; consequently an unnecessary source of confusion for jurors. (People v. Deletto, supra, 147 Cal.App.3d 458, 195 Cal.Rptr. 233.)

We hold, therefore, in light of the facts of the instant case, it was not prejudicial error to fail to give CALJIC No. 17.01 and/or 4.71.5.

III

ANY ERROR IN REFUSING TO INSTRUCT ON OTHER OFFENSES WAS HARMLESS.

Appellant believes the trial court's refusal to give CALJIC Nos. 2.50 and 10.35 was error requiring reversal. CALJIC No. 2.50 (evidence of other offenses) was necessary, according to appellant, to counteract the effect of R.S.'s testimony. R.S. testified that when appellant asked him if he could touch R.S.'s penis, appellant told R.S. he had done the same to M.W. Appellant characterizes this as evidence of an uncharged crime making it necessary to give a limiting instruction.

It should be noted first that R.S.'s statement that appellant told him he had done the same thing with M.W. was properly admissible as an admission. (Evid.Code, § 1220.) The testimony regarding appellant's request to touch R.S.'s penis presents a different question. This testimony by R.S. regarding the incident with appellant was not objected to. Furthermore, the incident did not constitute an uncharged offense because it did not proceed to the point of constituting an attempted offense. (People v. La Fontaine (1978) 79 Cal.App.3d 176, 180–183, 144 Cal.Rptr.) Consequently, a reading of CALJIC No. 2.50 was unnecessary with respect to R.S.'s testimony.

The second half of appellant's challenge concerned the necessity of CALJIC No. 10.359 in light of M.W.'s testimony that the fondling or acts of oral copulation took place “[e]very other day.” Again, when evidence of uncharged offenses is admitted, ordinarily some form of limiting instruction should be given. However, when the only evidence of uncharged offenses consists of the uncorroborated testimony of the victim, CALJIC No. 10.35 should not be given. (People v. Scott (1978) 21 Cal.3d 284, 297, 145 Cal.Rptr. 876, 578 P.2d 123.) M.W.'s testimony even as to oral copulation was not totally uncorroborated. F.E. testified he observed an episode of oral copulation between M.W. and appellant. However, that event was the subject of a separately charged offense, which was alleged to have occurred on or about a given date.

Given the other charges against appellant which allege the same conduct over a one-year period, it was not possible to restrict the testimony, or differentiate one act from the other. We find no case law indicating what type of instruction is necessary in this situation. In fact, there is no sua sponte duty to instruct a jury on the impact of evidence establishing the occurrence of uncharged offenses. CALJIC No. 10.35 was submitted by the prosecution to the trial court, which refused to give it to the jury. The question, therefore, is not whether the court had a sua sponte duty to give the instruction, but whether it was error to refuse to give it under the circumstances of the evidence.

The evidence on each count at issue here (counts 3 through 10 and 12 through 14) was not strengthened by detail. All we have before us is generally uncorroborated testimony by M.W. that the acts of oral copulation and/or molestation occurred every other day. Also, when other children were present, appellant would rub M.W.'s penis through his clothing.

Although M.W.'s testimony indicates more than one lewd and lascivious act occurred each month, it was impossible, as we have stated previously, to isolate the testimony to one act per month. Given the nature of his testimony, it is, therefore, inconceivable the jurors could have differentiated one act from the other. Consequently, each juror necessarily believed all of M.W.'s testimony as to counts 3 through 10 and 12 through 14.

Of course, it would have been preferable to instruct the jury on the effect of evidence regarding uncharged offenses. However, given the nature of the testimony and the unlikelihood the jury could focus on just one act per month, any error in failing to give CALJIC No. 10.35 is harmless.

IV

THE $10,000 RESTITUTION FINE WAS NOT EXCESSIVE AND AN ABUSE OF DISCRETION.

Appellant challenges the imposition of a restitution fine of $10,000 as excessive. We reject that challenge.

During sentencing, the trial court asked the probation officer why a recommendation of $10,000 had been made. In his response, the probation officer merely pointed to the seriousness of the crimes as a basis. The $10,000 fine was imposed without a statement of reasons.

The fine was imposed under the authority of Government Code section 13967, subdivision (a), which provides:

“Upon a person being convicted of any crime in the State of California, the court shall, in addition to any other penalty provided or imposed under the law, order the defendant to pay restitution in the form of a penalty assessment in accordance with Section 1464 of the Penal Code. In addition, if the person is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than one hundred dollars ($100) and not more than ten thousand dollars ($10,000). In setting the amount of the fine for felony convictions, the court shall consider any relevant factors including, but not limited to, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, and the extent to which others suffered losses as a result of the crime. Such losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Except as provided in Section 1202.4 of the Penal Code and subdivision (c) of this section, under no circumstances shall the court fail to impose the separate and additional restitution fine required by this section. This fine shall not be subject to penalty assessments as provided in Section 1464 of the Penal Code.”

Other than specifying the factors that may be considered in setting the amount of the fine, the Legislature has failed to provide any other guidance regarding the calculation of the fine. As a result, a determination of the fine is purely within the discretionary powers of the trial court. Its decision will not be disturbed absent a clear abuse of discretion. (People v. Giminez (1975) 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 534 P.2d 65.)

There is no requirement the court state its reasons for imposing a particular fine. (People v. Romero (1985) 167 Cal.App.3d 1148, 1154, 213 Cal.Rptr. 774.)

“[S]ince the determinate sentence law did not purport to affect the imposition of fines, it is reasonable to conclude that its sections which describe when a statement of reasons is necessary, such as Penal Code section 1170, subdivision (c), and rule 405(f) of the California Rules of Court, do not apply to the imposition of fines.” (Ibid.)

Very few cases have dealt with the propriety of a fine imposed pursuant to Government Code section 13967. In People v. Wyman (1985) 166 Cal.App.3d 810, 212 Cal.Rptr. 668, the defendant pleaded guilty to one count of violating section 288, subdivision (a), and admitted a prior conviction. At the time of the plea, the defendant was on probation for a previous violation of section 288. The trial court in Wyman imposed an 11–year prison term and a $1,000 fine pursuant to Government Code section 13967. (Id. at p. 812–813, 212 Cal.Rptr. 668.) The appellate court concluded the record supported the imposition of a $1,000 fine and noted it was only one-tenth of the maximum possible. (Id. at p. 816, 212 Cal.Rptr. 668.) Wyman had a long history of pedophilia and had caused physical and psychological harm to the victims and their families.

In People v. Clifton (1985) 172 Cal.App.3d 1165, 219 Cal.Rptr. 904, the defendant pleaded guilty to one count of driving while under the influence of alcohol and causing bodily injury (Veh.Code, § 23153, subd. (a)). Without analysis the court upheld a $5,000 restitution fine as “statutorily authorized and ․ within the maximum of $10,000.” (Id. at p. 1168–1169, 219 Cal.Rptr. 904.)

It should be remembered restitution under Government Code section 13967 is not restitution in the traditional sense. (People v. Wyman, supra, 166 Cal.App.3d at p. 815, 212 Cal.Rptr. 668.) Such fines are not a substitute for civil damages. Instead, they are a fine which is imposed as a form of punishment, and which is paid into a statewide fund for all victims rather than for one specific victim. (People v. Wyman, supra, 166 Cal.App.3d at p. 815, 212 Cal.Rptr. 668.) The defendant's ability to pay the fine is not a factor to be considered when setting the fine. As with a sentence, therefore, calculation of the fine is based on the evidence before the court. In setting the fine, the court should consider that the California Constitution prohibits the imposition of a fine considered excessive. (Cal. Const., art. I, § 17.) Ten thousand dollars is the maximum fine that can be imposed under Government Code section 13967, subdivision (a).

Though not required, it would be very helpful on review to know what the trial judge considered in determining the amount of the fine. Without knowing what the trial judge considered, an abuse of discretion might be found where none really exists.

Nevertheless, even without benefit of a statement of reasons, we find support for the maximum fine in the fact appellant was convicted of 14 counts of a “violent felony.” (See § 667.5, subd. (c).) The molestation appears to have gone on for a long period of time and on a regular basis. Furthermore, according to the probation report, M.W. and his brother are in a foster home and were scheduled to begin counseling sessions deemed necessary because of appellant's actions. The above evidence can be considered substantial evidence supporting the $10,000 fine.

We cannot say the facts show a clear abuse of discretion.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  All statutory references are to the Penal Code unless otherwise indicated.

2.  For time to be considered an element of the crime for purposes of establishing the corpus delicti, the Legislature would have to redefine the crime.

3.  Section 952 provides in pertinent part: “In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused․”

4.  Failure to demur to an information on the ground of uncertainty constitutes a waiver of the objection, and the validity of a subsequent judgment is not affected. (People v. Heim (1961) 196 Cal.App.2d 1, 5, 16 Cal.Rptr. 277.)

5.  Count 11 is not challenged here because it alleges conduct during February of 1985. A few of the children were able to testify that their observations occurred during the month of February.

6.  CALJIC No. 17.01 provides: “The defendant is charged with the offense of _. He may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts, but in order to find the defendant guilty, all the jurors must agree that he committed the same act or acts. It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.”

7.  CALJIC No. 4.71.5 provides: “Defendant is charged in [Count _ of] the information with the commission of 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 said crime 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 said crime within the period alleged. [¶] It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.”

8.  Indeed, both the prosecutor and appellant's attorney, as well as the court, apparently recognized the utter futility of giving CALJIC No. 17.01. The record shows it was offered by both sides and then withdrawn by both sides. We must presume the withdrawal occurred after the evidence was all in and the court was holding its customary conference with both counsel before argument. The record does not show otherwise. The attorneys and the court may have realized, as is so obvious to this court based on the record, that the crime of lewd and lascivious conduct was not shown by single, separately described acts, but by a course of conduct spanning approximately two years. CALJIC No. 17.01 would have required the jury to come to some fictional agreement on one undifferentiated act as to each count based on testimony the act occurred “every other day.” The rules of law regarding election or the giving of a unanimity instruction have superficial applicability and no real relevance in light of the facts here. To force blind adherence to them where a defendant has succeeded in engaging in a course of sexual conduct with a child for months or years before detection, would be tantamount in many cases to ordaining no prosecution in the most flagrant cases.

9.  CALJIC No. 10.35 provides: “Evidence has been introduced for the purpose of showing lewd or lascivious acts between the defendant and the child in question on one or more occasions other than that charged in this case. [¶] If you believe such evidence, you may use it only for the limited purpose of tending to show the defendant's lewd disposition or intent toward the child. [¶] You must not consider such evidence for any other purpose.”

PETTIT,* Retired J. (Assigned). FN* Retired judge of the superior court sitting under assignment by the Chairperson of the Judicial Council.

FRANSON, Acting P.J., and WOOLPERT, J., concur.