PEOPLE v. STOWE (1987)

Appellant and codefendants Gerardo G. and Cheryl G., were charged with committing 29 separate acts of lewd and lascivious conduct between April 1, 1984, and June 26, 1984.   On November 9, 1984, appellant's trial counsel withdrew as the attorney of record in the case, citing a conflict of interest.   A new attorney was retained on November 26, 1984.

The case of appellant was eventually severed from that of Gerardo G. and Cheryl G.   The amended information specifically charged appellant with committing the following crimes:

First count—aiding and abetting an act of lewd and lascivious conduct upon and with the body of L.S., a child under the age of 14 years, when Gerardo G. touched L.S.'s penis with his hand. (Pen.Code, § 288, subd. (b).) ¹

Second count—aiding and abetting an act of lewd and lascivious conduct upon and with the body of L.S., a child under the age of 14 years, when Gerardo G. touched his penis to the rectum or buttocks of L.S.

Third count—aiding and abetting an act of lewd and lascivious conduct upon and with the body of L.S., a child under the age of 14 years, when Gerardo G. placed his mouth on the penis of L.S.

Fourth count—aiding and abetting an act of lewd and lascivious conduct upon and with the body of L.S., a child under the age of 14 years, when Gerardo G. placed his penis in the mouth of L.S.

Fifth Count—aiding and abetting an act of lewd and lascivious conduct upon and with the body of L.S., a child under the age of 14 years, when L.S. was forced to commit a lewd act with a dog.

Sixth count—aiding and abetting an act of lewd and lascivious conduct upon and with the body of L.S., a child under the age of 14 years, when Cheryl G. touched the penis of L.S. with her hand.

Seventh count—aiding and abetting an act of lewd and lascivious conduct upon and with the body of L.S., a child under the age of 14 years, when Cheryl G. touched the buttocks or rectum of L.S. with her hand.

Eighth count—aiding and abetting an act of lewd and lascivious conduct upon and with the body of L.S., a child under the age of 14 years, when L.S. was forced to touch the breasts of Cheryl G.

Ninth count—aiding and abetting an act of lewd and lascivious conduct upon and with the body of L.S., a child under the age of 14 years, when L.S. was forced to touch the vagina or genital area of Cheryl G.

Tenth count—aiding and abetting an act of lewd and lascivious conduct upon and with the body of L.S., a child under the age of 14 years, when L.S. was forced to touch the buttocks or rectum of Cheryl G.

Eleventh and fifteenth counts—an act of lewd and lascivious conduct upon and with the body of L.S., a child under the age of 14 years, when appellant touched his penis to the vagina or genital area of M.G.

Twelfth and sixteenth counts—an act of lewd and lascivious conduct upon and with the body of L.S., a child under the age of 14 years, when appellant touched his penis to the buttocks or rectum of M.G.

Thirteenth and seventeenth counts—an act of lewd and lascivious conduct upon and with the body of L.S., a child under the age of 14 years, when appellant placed his mouth on the vagina or genital area of M.G.

Fourteenth and eighteenth counts—an act of lewd and lascivious conduct upon and with the body of L.S., a child under the age of 14 years, when appellant touched his penis to the rectum or buttocks of L.S.  (The fourteenth count included additional language, “with his hand.”)

A jury trial of the charges began on February 20, 1985.   On March 6, 1985, the jury returned a verdict of guilty on the first through thirteenth counts and fifteenth through seventeenth counts, while failing to reach a verdict on the fourteenth and eighteenth counts, resulting in a mistrial on those two counts.

On April 24, 1985, a motion for a new trial was filed, challenging the sufficiency and credibility of the evidence.   The motion was denied on April 25, 1985.   On that same day, appellant was sentenced to 30 years in state prison.   A timely notice of appeal was filed by appellant on May 28, 1985.

I

FACTS

During the late spring and/or early summer of 1984, the home of Gerardo G. and Cheryl G. became the scene of numerous episodes of a group of children being subjected to various forms of sexual abuse by a group of adults.   This case involves the prosecution of appellant regarding the events of, apparently, three such occasions.

A. First Occasion.

M.G., a seven-year-old, testified that sometime soon after school was let out for the summer break, she was playing with L.S., appellant's son, in her bedroom during the daytime.   M.G's parents (Gerardo G. and Cheryl G.) and appellant came into the room.   M.G.'s father told all the children present to remove their clothing.   According to M.G., the children in the room included herself, L.S., her brother T.G., and their friend S.G.   The adults in the room consisted of Gerardo and Cheryl G., appellant, and S.G.'s father.

M.G. stated that at this point the adults tied the children up, put them on a bed, and gave them both a pill and a shot.   The adults then undressed.   M.G. remembered that the pill made her feel tired.

M.G. described how her father touched her vaginal and rectal areas with his penis.   Gerardo G. orally copulated M.G., then forced her to orally copulate him.   Following this, M.G.'s mother, Cheryl G., touched M.G.'s vaginal and rectal areas with her fingers.

Although up to this point appellant merely had been a spectator, M.G. testified that eventually he, too, “touched” her.   According to M.G., appellant placed his penis in her vaginal area and then had her turn over before sodomizing her.

M.G. described how appellant then focused his attention on his son, L.S.  Appellant touched his penis to L.S.'s rectal area, then forced L.S. to orally copulate him.   Cheryl G. followed by putting her fingers in L.S.'s rectal area.   Gerardo G. sodomized and orally copulated L.S., and had L.S. orally copulate him.

Seven-year-old S.G. testified that on this first occasion she saw appellant touch his penis to M.G.'s vaginal and rectal areas while M.G. was handcuffed.   S.G. did not see appellant touch L.S.   According to S.G., Cheryl and Gerardo G. also “touched” M.G. on that occasion.   S.G. remembered that on this first occasion the adults present were appellant, Gerardo G. and Cheryl G., while the children consisted of M.G., L.S. and T.G. S.G. remembered receiving a turquoise-colored pill and a shot in the elbow.

B. Second Occasion.

M.G. testified that on this second occasion, she, T.G., L.S., M.N. and A.N. were playing when the adults came into her room.   The adults consisted of her parents, appellant and his wife, and a “Fred.”   The adults again instructed the children to remove their clothing and handcuffed their ankles and wrists.   M.G. described how appellant touched his penis to her vaginal and rectal areas, then orally copulated her.   Appellant also “touched” L.S. that day by touching his penis to L.S.'s backside, orally copulating L.S., and forcing L.S. to orally copulate him.   According to M.G., Cheryl G. did not touch L.S. on this occasion.   M.G. then went on to describe how her dog was brought into the room and licked L.S.'s “front,” causing L.S. to cry.   A substance had been placed on L.S.'s front by Cheryl G. before the dog approached L.S.

S.G. remembered that on this second occasion, M.G., L.S., she and C. were present, while the adults included Gerardo and Cheryl G., appellant and C.'s mother and father.   S.G. only described how appellant “touched” M.G. on her vaginal and rectal areas.

Six-year-old L.S. testified exclusively about this second episode.   L.S. remembered playing in M.G.'s bedroom when M.G.'s parents and his father, appellant, told them to come into another room.   Gerardo G. told the children to undress.   The children included M.G., L.S., T.G. and “others.”   The adults undressed also, although at one point L.S. stated that his father (appellant) was dressed during his sodomization by Gerardo G.   The children were then handcuffed and given a shot in the elbow.

L.S. described how Gerardo G. sodomized him.   Cheryl G. then approached L.S. and instructed him to touch her breasts, vaginal and rectal areas with his hand.   He complied.   During cross-examination, L.S. stated that his father never did anything bad to him.   On redirect, L.S. related how Gerardo G. spread a substance on his penis before the dog bit him.

Nine-year-old M.N. was the next child to testify about this second incident occurring at the home of Gerardo and Cheryl G. M.N. remembered that it was a Saturday when he, along with some other children, played together in M.G.'s bedroom.   These children included M.N., his sister, A.N., M.G., T.G., S.G., and L.S.   At one point, the following adults entered the room:  Gerardo and Cheryl G., appellant, S.G.'s father, and M.N.'s parents.   After everyone had undressed, the children were handcuffed to a board and given shots in the right inner elbow.

According to M.N., at this point appellant orally copulated L.S., then “touched” him with his hand around the rectal area.   During this time, Cheryl G. took pictures.   Gerardo G. “touched” L.S. as follows:  mouth to L.S.'s rectum and penis, hands to rectum, and penis to L.S.'s mouth and rectal area.   Cheryl G. then “touched” L.S.'s penis and buttocks, followed by L.S. touching Cheryl G. on her vaginal area and breasts.

C. Third Occasion.

M.N. testified about another occasion when he was playing with L.S. in T.G.'s room.   This is the only testimony indicating there may have been a third episode.   Appellant, M.N.'s parents, Gerardo and Cheryl G., came in, and again, everyone removed their clothing.   However, this time the children were not handcuffed.   M.N. then described how a brown-and-white St. Bernard came into the room and “touched” L.S. after some dog food had been spread on his penis and rectal areas.   Appellant at some point warned the children not to say anything.

D. Medical Testimony.

Dr. Jess Diamond examined M.G. in September of 1984.   Dr. Diamond found tears in the hymen and noted that the opening to the vagina was larger than normal.   Although these discoveries do not conclusively prove sexual abuse, they are “indicative” of sexual abuse.   M.G.'s pediatrician, Dr. William diNicola, testified for the defense that he found no lesions in the hymen during a July 1984 examination of M.G.

E. Defense.

Appellant's defense was that he did not know Gerardo G., Cheryl G., or their children, and that he had never been in their home.   He so testified and his wife corroborated.   Additionally, various members of his family testified as to their monitoring of son L.S.'s activities during relevant time frames.

The defense also presented evidence to attack the children's credibility including M.G.'s initial interview which did not list appellant as one of the adults in the room during the incidents, L.S.'s failure to identify Gerardo G. and Cheryl G. during separate lineups, and M.N.'s failure to mention appellant or L.S. during early interviews which changed when M.N. said he was threatened by a Child Protective Services worker that she would “keep him all day unless he told the truth.”

As to his own character, appellant offered the testimony of Dr. Theodore Donaldson, a psychologist, who stated that his testing showed appellant did not possess characteristics of a child molester.   Dr. Donaldson was unsure of the validity of this analysis when applied to the question of group molestation conduct.   Finally, a number of witnesses testified to appellant's good character and reputation based upon their contact with him as a hospital X–ray technician.

II

DISCUSSIONA. Ambiguous Charging Language of Eleventh, Twelfth, Thirteenth, Fifteenth, Sixteenth and Seventeenth Counts.

The factual allegations as worded in the eleventh, twelfth, thirteenth, fifteenth, sixteenth and seventeenth counts of the information do not support the actual crimes charged.   For example, the eleventh count, which is representative of the other counts at issue here, provides:

“That said GERARDO [G.], CHERYL [G.] and LEROY GEORGE STOWE, JR., on or about and between April 1, 1984 and June 26, 1984, at and in said County of Kern, State of California, did willfully, unlawfully and lewdly commit a lewd and lascivious act upon and with the body of [L.S.], age 6, a child under the age of fourteen years, in the following manner:  Leroy George Stowe, Jr. touched his penis to the vagina or genital area of [M.G.], and Gerardo [G.] and Cheryl [G.] did aid and abet the commission of said offense, and such act was committed by use of force, violence, or threat of great bodily harm, and against the will of the victim, with the intent of arousing, appealing to, and gratifying the lust, passions and sexual desires of said defendant or said child, in violation of Section 288(b) of the Penal Code, a felony.”

A violation of section 288, subdivision (b), requires the commission of a lewd or lascivious act upon or with the body, or any part or member of the body, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or child by means of force, violence, duress, menace, or threat of great bodily harm.   The language of section 288 has been interpreted to require a “touching” of the victim with a “lustful intent.”  (See People v. Austin (1980) 111 Cal.App.3d 110, 113, 168 Cal.Rptr. 401;  see also People v. Coontz (1953) 119 Cal.App.2d 276, 279, 259 P.2d 694;  People v. Ash (1945) 70 Cal.App.2d 583, 584, 161 P.2d 415.)

Appellant is charged with committing an act of lewd and lascivious conduct upon or with the body of L.S. when appellant touched his penis to M.G.'s vaginal area.   L.S. is the victim in the eleventh count, not M.G.  Furthermore, although L.S. is the stated victim in the twelfth, thirteenth, fifteenth, sixteenth and seventeenth counts, in each the factual allegations involve appellant touching M.G.—not L.S.   The ramifications of these defects in the pleading must, therefore, be explored.

 Although defects in accusatory pleadings generally can be attacked only by demurrer or be waived, when the defect involves the lack of jurisdiction or the failure to allege a public offense, the objection may be raised on appeal.  (§ 1012;  People v. Paul (1978) 78 Cal.App.3d 32, 42, 144 Cal.Rptr. 431.)   Therefore, the fact the information was not attacked below is not fatal.

“A person cannot be convicted of an offense, not charged against him in the indictment or information, whether or not there was evidence at trial to show that he committed the offense.  [Citation.]   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.  [Citation.]”  (People v. Puckett (1975) 44 Cal.App.3d 607, 611, 118 Cal.Rptr. 884.)

A compelling concern is that the words of the 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.)

In this case, appellant was given notice of two different offenses per count for which he had to prepare a defense.   In fact, evidence to support either offense within each count was introduced by the prosecution.   In addition to evidence that could be construed as supporting the mistried fourteenth and eighteenth counts (each charging that appellant sodomized L.S.), M.G. and M.N. each provided testimony indicative of other lewd and lascivious acts against L.S.   Regarding the first occasion, M.G. testified that she observed appellant put his mouth on L.S.'s “front.”   On the second occasion, appellant and L.S. orally copulated each other according to M.G., and M.N. indicates that appellant not only orally copulated L.S., but he also placed his hand in L.S.'s rectal area.   To further complicate matters, the counts include a recitation of Gerardo G. and Cheryl G. as aiders and abettors although they were not defendants in this action at the time of trial.   The statement of facts contained within this opinion lists a number of additional sexual acts performed by Gerardo G. and Cheryl G. that were not charged in this case.

 This uncertain condition of the pleadings not only leaves appellant with inadequate notice, it also presents tremendous impediments to the jury's deliberations.   The jury was given a copy of the information to use during deliberations.²  The wording of the discussed counts lent itself to several possible interpretations.   Since seemingly uncharged sexual acts arose at trial, the jurors could well have used that evidence to support these ambiguous charges.   As discussed later in this opinion at II F., the jurors found appellant guilty on two of the counts that lacked any specific evidence lending credence to the concern that the jurors were confused in applying the facts to the equivocally worded charges.

On a different point, the jury discovered it was not going to get any help from the court in clarifying awkward wording in the information.   The fourteenth count charges appellant with touching “his penis to the buttocks and/or rectum of [L.S.] with his hand.”  (Emphasis added.)   During the deliberations, the jury sent a note to the judge asking whether the words “with his hand” should be deleted, whereupon the judge responded in part:  “You will just have to struggle with it the way it is and make your decision based upon the information the way it reads.”   The jurors could well have been equally frustrated with the ambiguous language in these other counts assuming that no clarification would be forthcoming.

Furthermore, appellant could have been convicted under each of these counts of having committed two separate crimes—a lewd and lascivious act with M.G., and/or a lewd and lascivious act with L.S.   Because an election was never made as to which offense to pursue, and a unanimity instruction was never read to the jury (such as CALJIC No. 17.01), the jurors may have relied on evidence of different acts to convict on these six counts.³

 A defendant must be told, with some particularity, which of the factual theories the People will rely on to obtain a conviction.  (Lamadrid v. Municipal Court (1981) 118 Cal.App.3d 786, 791, 173 Cal.Rptr. 599;  People v. Kloss (1933) 130 Cal.App. 194, 196–199, 19 P.2d 822 [it can hardly be said there has been no miscarriage of justice when a defendant is forced to trial upon an information where neither he nor the court can tell with which of two offenses he is charged].)   Furthermore, a jury must understand what the specific charge is when it determines guilt.   Here, because a conviction of section 288, subdivision (b), requires a showing that the lewd and lascivious act was committed upon or with the body of a specific victim, designation of the correct victim is crucial.   Convictions on the eleventh, twelfth, thirteenth, fifteenth, sixteenth and seventeenth counts are therefore reversed with direction on remand to amend consistent with this opinion before retrial, if any.

B. Failure of Prosecution to Elect Between Offenses and Lack of Unanimity Instruction.

 Appellant asserts that he was denied due process when the prosecution was not forced to elect between offenses and the evidence established that more than one offense was committed.   Respondent counters by arguing the evidence did not reveal uncharged offenses upon which jurors could have relied to reach their verdicts.

“[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.”  (People v. Gordon (1985) 165 Cal.App.3d 839, 853, emphasis in original, 212 Cal.Rptr. 174;  fn. omitted.)

Although trial counsel's request that the prosecution elect between offenses charged was denied, we have no record to show us whether he later requested CALJIC No. 17.01.   However, because the instruction must be given sua sponte, review of the fact it was not given here is not waived.  (See People v. Madden (1981) 116 Cal.App.3d 212, 219, 171 Cal.Rptr. 897.)   When no election is made, it is presumed that the first offense upon which substantial evidence is introduced is the one selected.   This presumption applies, however, only when the jury has been given some form of a unanimity instruction.  (People v. Metheney (1984) 154 Cal.App.3d 555, 563, 201 Cal.Rptr. 281.)

Here, the second, third, fourth, fifth and seventh counts are each supported by two separate courses of conduct.   The second count can be supported by (1) M.G.'s testimony that Gerardo G. inserted his penis into L.S.'s rectum on the first occasion, or (2) testimony of each of M.G., M.N. and L.S. that Gerardo G. sodomized L.S. on the second occasion.   The second count is the only charge of aiding and abetting Gerardo G.'s sodomization of L.S.

The third count can be substantiated by (1) M.G.'s account that her dad put his mouth on L.S.'s “front” during the first episode, or (2) M.N.'s recalling M.G.'s dad placing his mouth on L.S.'s penis on a Saturday (which inferentially would have been the second episode since no evidence indicated that M.N. was present the first time).   Oral copulation of L.S. by Gerardo G. is charged only in this count.

Support for the fourth count can be found in (1) M.G.'s statement that after her dad orally copulated L.S. then L.S. “did the same thing to my dad, too,” or (2) M.N.'s recollection that among the lewd acts committed in his presence by M.G.'s dad was the dad's touching his penis to L.S.'s mouth.   This alleged sexual act is also charged but once.

The fifth count can be traced to either (1) M.G.'s and L.S.'s separate testimony that M.G.'s family dog licked or bit L.S.'s penis on the second occasion, or (2) M.N.'s testimony that a Saint Bernard licked Tutti (L.S.) on “his front private” on yet a different date (referred to herein as the “third occasion”).   Likewise, this is charged once.

Finally, the seventh count, the sole allegation that Cheryl G. touched L.S.'s rectum with her hand, can be supported by (1) M.G.'s statement, with reference to the first episode, that her mom put her fingers in L.S.'s “back,” or (2) M.N.'s response that he saw M.G.'s mother touch L.S. on his “behind.”

 The law requires that the jury be told its verdict on a particular count has to be based on the same set of facts.  (See People v. Metheney, supra, 154 Cal.App.3d at p. 560, 201 Cal.Rptr. 281.)

Prejudice resulting from errors of this nature is measured under the test in Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.   Therefore, for the convictions on these five counts to survive, the failure to elect between offenses or give the unanimity instruction must have been harmless beyond a reasonable doubt.  (Id. at p. 24, 87 S.Ct. 824, 17 L.Ed.2d 705.)

An exception to a rigid application of Chapman, however, is suggested in People v. Diedrich (1982) 31 Cal.3d 263, 182 Cal.Rptr. 354, 643 P.2d 971, and cases interpreting the language of Diedrich.   Specifically, reversal may not be required 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.)   The rationale underlying this exception is that when the evidence offers only one defense and the jury must either accept or reject that defense “in toto,” the jury would feel compelled to reach a unanimous verdict and a unanimity instruction would be unnecessary.  (See People v. Gonzalez (1983) 141 Cal.App.3d 786, 792, 190 Cal.Rptr. 554;  People v. Thompson (1984) 160 Cal.App.3d 220, 226, 206 Cal.Rptr. 516.)   However, when interpreting this exception, we note that a number of courts are hesitant to accept its application completely.

In People v. Metheney, supra, 154 Cal.App.3d 555, 201 Cal.Rptr. 281, this court avoided applying the language in Diedrich by examining the defense's response to various pieces of evidence used by the prosecution to establish guilt, rather than its defense in general.  (Id. at p. 564, 201 Cal.Rptr. 281.)   There, because the defendant's conduct and statements were subject to different meanings and because the crime required proof of specific intent, this court felt it could not be said with a degree of certainty that “the jury necessarily rejected appellant's only defense to the charge.”  (Id. at pp. 564–565, 201 Cal.Rptr. 281.)

In People v. Deletto (1983) 147 Cal.App.3d 458, 195 Cal.Rptr. 233, while the court applied the exception from Diedrich, it took pains to analyze the evidence and explain why it felt the jury could not have come to different conclusions on the two separate offenses proved.  (Id. at p. 466, 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.

“Nor is this a case in which the recollection of any prosecution witness is better with respect to one incident than the other․  [T]he testimony gave the jury no basis upon which to discriminate between the two incidents.

“Nor did other testimony of the minor, provided during cross-examination, focus on the two acts of oral copulation․  [A]lthough defense counsel elicited testimony tending to show that someone other than defendant had committed the acts in question, and that the minor's foster mother had at least coached the minor about what to say, cross-examination of the minor provided no basis upon which the jury could have distinguished between the two acts of oral copulation.”  (Id. at pp. 466–467, 195 Cal.Rptr. 233.)

The court concluded that based on this evidence and the fact the defense made no effort to distinguish between the two acts of oral copulation, the Diedrich exception applied.  (Id. at p. 468, 195 Cal.Rptr. 233.)

In this case, appellant's defense was complete denial;  he was not in the room with the children, he did not engage in sexual acts with the children, and in fact, except for his son, did not know the individuals involved in the crimes.   Although he presented evidence of his good character, reputation and psychological health, appellant's attack of the prosecution evidence was centered mostly on the issue of credibility.   Appellant sought to prove that the children's testimony was fabricated, at least with regard to their accusations against him.

 There is a strong basis for concluding that at least a few jurors did not reject appellant's approach completely.   Although appellant was charged with 18 counts of lewd and lascivious conduct as either an aider and abettor or a principal, he was only convicted of 16.   On the two counts alleging appellant had committed specific sexual acts with his son L.S., the jury was unable to reach a verdict.   The evidence to support the allegations in these two counts was derived from the same sources as the evidence used to support the remaining 16 counts.   There is no way to determine exactly what testimony the jury rejected and which it accepted.   Furthermore, the testimony offered by the prosecution made it possible for the jury to convict on two different sets of facts occurring on two different occasions.   Clearly, appellant's attacks regarding the credibility of the evidence did not have to be accepted “in toto.”   This may have been the reason why the jury was unable to reach a verdict on the fourteenth and eighteenth counts.   This situation created the possibility the jurors could individually disagree as to which acts appellant performed yet still vote for guilt on five counts where there were alternative sets of facts from which to choose.  (See People v. Gonzalez, supra, 141 Cal.App.3d 786, 791–792, 190 Cal.Rptr. 554.)   We cannot conclude with any confidence that all the jurors agreed on the acts which were committed, or that disagreement as to credibility was not reasonably possible.  (Ibid.;  People v. Espinoza (1983) 140 Cal.App.3d 564, 569, 189 Cal.Rptr. 543.)

Additionally, it should be noted that the “continuous conduct” exception is not applicable here.   The two offenses for each count occurred on separate days and could not be considered “so closely connected in time that they formed part of one transaction.”  (People v. Diedrich, supra, 31 Cal.3d at p. 282, 182 Cal.Rptr. 354, 643 P.2d 971.)

Because the convictions could be based on two separate sets of facts and it is uncertain what effect the issue of credibility had on the jury, we cannot say the failure to give CALJIC No. 17.01 sua sponte was harmless beyond a reasonable doubt.   As a result, the convictions on the second, third, fourth, fifth and seventh counts are hereby reversed.

C. Claim of Denial of Right to Counsel of Choice.

Appellant claims he was denied his constitutional right to retain the counsel of his choice when his attorney withdrew as the attorney of record.   Appellant states his attorney was ordered to withdraw by the trial court, adversely affecting his rights.   Neither the record nor appellant factually support this conclusion.

 Although there exists no absolute right to representation by a particular attorney, courts should “make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney.”  (People v. Crovedi (1966) 65 Cal.2d 199, 207, 53 Cal.Rptr. 284, 417 P.2d 868.)   Consequently, a trial court should avoid interfering with the individual's decision regarding his or her defense unless the defendant would be significantly prejudiced or the “orderly processes of justice ․ under the circumstances of the particular case” would be disrupted.  (Id. at p. 208, 53 Cal.Rptr. 284, 417 P.2d 868.)   When reviewing a trial court's action on this issue, the reviewing court must examine the circumstances of each case, giving special attention to the reasons presented by the trial judge at the time a ruling is made.  (See People v. Courts (1985) 37 Cal.3d 784, 791, 210 Cal.Rptr. 193, 693 P.2d 778.)

 Other than a notation in the minute order stating appellant's attorney was withdrawn because of a conflict, we are without a basis to conclude that appellant was denied his constitutional right to the retained counsel of his choice or that the trial court unreasonably interfered with appellant's defense.   Because his challenge is factually unsubstantiated, appellant fails on this issue.

D. Assertion of Prosecutorial Misconduct.

Appellant contends that the following exchange, when defense counsel was reading from a transcript into the record, constituted prosecutorial misconduct:

“Question:  Were there handcuffs?

“Answer:  No.   Our handcuffs were broke because we only have toy handcuffs.

“MRS. RYALS [Prosecutor]:  At this time I would like you to read the next two lines, please.

“MR. MITTS [Defense counsel]:  Can we approach the bench?”

Appellant further claims that any prejudice resulting from this statement was compounded during the prosecutor's closing argument when the following comment was made:

“I assure you there were tape recordings made that the defense read portions of.   If there had been this brainwashing going on you would have heard them all, not just a line or two here and a line or two there.   If there had been this giant brainwashing why would the tape recorder have been turned on to start with to record the inconsistent statements?   If this giant conspiracy were taking place would it have taken place partially on tape and out in the open where everybody could see what was going on?”

 Instances of prosecutorial misconduct may be raised as errors on appeal only if they are objected to in timely fashion at trial or if the harmful effect of the misconduct could not have been obviated by a timely cautionary instruction by the trial court.  (People v. Villa (1980) 109 Cal.App.3d 360, 364, 167 Cal.Rptr. 265.)   Respondent argues that appellant waived this issue for purposes of appeal by failing to object when the statements were made.   However, as soon as the first instance of alleged misconduct occurred, defense counsel asked to approach the bench.   The following remarks were made on the record:

“THE COURT:  Ladies and gentlemen, I don't want you to draw any inference that Mr. Mitts has done something improper by reading what he has read to you and Mrs. Ryals' spurious, I should say, request that he read a couple of more lines.   The fact of the matter is that counsel agreed Friday as to what he was going to read to you and Mrs. Ryals had that copy of the exact portion of the transcript that Mr. Mitts was going to read to you, and she agreed to that.   Of course, this does not mean that she is precluded from reading any other portion later on, but it was improper for her to make the request that she did in the manner that she did.

“MRS. RYALS:  I do apologize to the Court and to Mr. Mitts and to the jury.”

Although an appropriate objection actually was not made on the record, a reasonable interpretation of the trial court's statement and the prosecutor's apology leads to the conclusion that an off-the-record objection was voiced at the bench.   As a result, we do not view this objection as having been waived.   With regard to the statement made during closing argument, there clearly was no objection, thus any challenge to that statement is deemed waived.

“ ‘[W]hen a district attorney is guilty of misconduct in the trial of a criminal case, it is ordinarily the duty of counsel for the defense promptly to call the attention of the court thereto, and assign it as misconduct, or request the court to instruct the jury to disregard it.’ ”  (People v. Kirkes (1952) 39 Cal.2d 719, 726, 249 P.2d 1.)

Even if not waived, the claim of misconduct would fail since the prosecutor simply offered that if there had been brainwashing, more of the transcript would have been read to support this contention.

When the prosecuting attorney asked appellant's attorney to read a few more lines of the transcript, nothing more was said.   After the attorneys approached the bench for a brief discussion, the trial court instructed the jury to disregard the prosecuting attorney's statement and to refrain from drawing any improper inferences from it.   The statement did not directly or inferentially convey the idea the prosecuting attorney was relying on facts not part of the record.  (See People v. Villa, supra, 109 Cal.App.3d 360, 365, 167 Cal.Rptr. 265.)   For this reason, the actions taken by the trial court, such as instructing the jury to disregard the comment, defused any harmful effect the statement could have had on the trial as a whole.   Even under the strict standard of Chapman v. California, any prejudice resulting from this statement was harmless beyond a reasonable doubt.

E. Admission of Prior Consistent Statement.

 Appellant challenges the admissibility of a prior consistent statement made by M.G. that was introduced to rehabilitate M.G.'s testimony after she was impeached by evidence of a prior inconsistent statement.   The evidence concerned a prior statement by M.G. that her father had molested her.

When the prosecution attempted to introduce the evidence, the following exchange took place:

“Q When you interviewed [M.G.] in your office did you ask her with particularity about the events, the things that had happened to her to her body?

“A Yes, I did.

“Q What particularly did you ask her?

“MR. MITTS:  I'm going to object.   I don't see the relevance, and secondly, we're getting into hearsay.

“MRS. RYALS:  It is a prior consistent statement, your Honor.   Mr. Mitts has brought up a prior inconsistent of the child and I believe I can bring in prior consistent statements to rehabilitate him.

“MR. MITTS:  I don't have any disagreement with that.   I just think that the counsel for the People has to be a little bit more specific.

“THE COURT:  Has to be a bit more specific about what?

“MR. MITTS:  Well, if there is a prior inconsistent statement that I have brought in then certainly Mrs. Ryals can bring in testimony to show that there was a statement consistent with that, but to bring in wholesale any conversation between Miss Skabelund and [M.G.] would bring in other matters.

“THE COURT:  I agree.   You can bring in only the consistent statements, not the entire conversation.

“MRS. RYALS:  Thank you.”

Appellant's objection concerned other statements made by M.G. during her interview with the deputy district attorney.   His objection was not directed toward the admissibility of the prior consistent statement that is now being challenged on appeal.   As a result, the failure to object properly to the admissibility of the prior consistent statement results in a waiver of the issue on appeal.  (People v. Nugent (1971) 18 Cal.App.3d 911, 917, 96 Cal.Rptr. 209.)

F. Sufficiency of Evidence.

Appellant challenges the sufficiency of the evidence on all 16 counts.   Appellant's challenge is based on the belief that the testimony of the children was “confabulated,” and unreliable.   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.)

 Two important aspects of this standard of review must be kept in mind, however.   The first is that the issue must be resolved in light of the whole record—i.e., the entire case put before the jury.  (Id. at p. 577, 162 Cal.Rptr. 431, 606 P.2d 738.)   As a result, resolution of the issue cannot be limited to isolated pieces of evidence.   Second, the evidence must be substantial in light of other facts.  (Ibid.)

Although there was a vast amount of evidence introduced in this case to establish the occurrence of two or three bizarre episodes where a group of children were molested by a group of adults, there is a fatal lack of evidence with regard to two of the counts.   With regard to the first count (appellant allegedly aided and abetted Gerardo G. in an act of lewd and lascivious conduct with L.S. when Gerardo G. touched L.S.'s penis with his hand), absolutely no evidence exists to support this specific charge.

Referring to the thirteenth and seventeenth counts, each is supported only by the following statements made by M.G.:

“Q And then after he put his front on your front what happened?

“A Then he put his mouth on my front.

“Q He did what?

“A He put his mouth on my front.

“Q And what did he do with his mouth after he put it on your front?

“A Then he would move around.”

Each count alleges appellant committed a lewd and lascivious act against L.S. when appellant put his mouth on M.G.'s vagina.   Because there is no evidence to support the idea that this specific act occurred twice, at least one of these counts will have to be stricken as lacking any evidentiary support.   Here we choose to strike the seventeenth count for this reason.

The convictions on the second, third, fourth, fifth and seventh counts are each supported by at least two references in the transcript.   However, in each case, the evidence consists of testimony establishing the occurrence of these specific sex acts on two separate occasions.   The problems presented thereby, somewhat the converse of substantial evidence considerations, are discussed hereinbefore at II B.

 The sixth, eighth, ninth and tenth counts charge appellant with aiding and abetting an act of lewd and lascivious conduct when L.S. was forced to touch Cheryl G.'s breast (eighth count), vaginal area (ninth count), and buttocks (tenth count), and Cheryl G. touched L.S.'s penis (sixth count).   The evidence supporting these counts arose during the examinations of L.S. and M.N.:

“Q And at any time while [M.G.'s] mama was close to you did you touch [M.G.'s] mama with your hand?

“A She told me to.

“Q And did you do what she told you to?

“A Yeah.

“Q And where did you touch her with your hand?

“A Her titties.

“Q Did she help you do that or did you just do it by yourself?

“A She put it right there.

“Q And did you put your hand anywhere else?

“A Yeah.

“Q And where was that?

“A On her pee-pee and her bodie.

“Q And did she tell you to do that too?

“A Yeah.  [Testimony of L.S.]

“․

“Q Did you see [M.G.'s] mother touch anyone?

“A Yes.

“Q Who [sic ] did you see [M.G.'s] mother touch?

“A [L.S.]

“Q And whill [sic ] you tell us where [M.G.'s] mother touched [L.S.]?

“A On his behind and his penis.

“Q Did you see [L.S.] touch [M.G.'s] mother?

“A Yes.

“Q And where did he touch [M.G.'s] mother?

“A With his mouth.

“Q I didn't hear what you said.   Would you mind telling us again where you saw [L.S.] touch [M.G.'s] mother?

“A On her front private.

“Q Did he touch her anywhere else?

“A Yes.

“Q Where was that?

“A Under the top.

“Q When you say ‘under the top,’ stand up and point to your part of the body where that top would be.

“A Up here.

“Q Okay.

“THE COURT:  Demonstrating to his chest area.”  [Testimony of M.N.]

Ambiguity of the eleventh, twelfth, fifteenth and sixteenth counts (as well as the thirteenth and seventeenth) is discussed at II A.   For purposes of our substantial evidence discussion, we assume M.G. is the sole victim of each count.

The eleventh and fifteenth counts charge appellant with the identical crime—committing a lewd and lascivious act with L.S. when appellant touched his penis to the vaginal area of M.G.   Evidence indicates this specific act occurred on two different occasions.   This evidence is provided by M.G. and S.G.

The twelfth and sixteenth counts also charge appellant with the same conduct—committing a lewd and lascivious act with L.S. when appellant touched his penis to the rectum of M.G.   Such evidence is provided by M.G. and S.G. (both testifying as to each of two occasions).

After carefully reviewing the entire record, including the excerpted portions discussed herein, we conclude that only the first and seventeenth counts fail the substantial evidence test.

At oral argument, counsel for appellant alluded to a report of the Attorney General concerning circumstances surrounding the investigation of this and related cases.   This report is not before us, thus we cannot consider its findings.   We note, however, that appellant may have a habeas corpus remedy in Kern County Superior Court with regard to the convictions on the counts affirmed herein.

III

DISPOSITION

Convictions on the first and seventeenth counts are reversed.   Convictions on the second, third, fourth, fifth, seventh, eleventh, twelfth, thirteenth, fifteenth and sixteenth counts are reversed and remanded for further proceedings.   We affirm the guilty verdicts on the sixth, eighth, ninth and tenth counts but necessarily remand said counts for resentencing in light of the other reversals.

I concur under established principles of appellate review that on the present record we have no alternative but to uphold the sufficiency of the evidence to support a conviction on all counts but two.   However, I wish to express a grave concern that a travesty of justice may have occurred in the light of what I understand to be the findings of the Attorney General in his investigative report concerning this and other related cases in Kern County.   I also understand that the credibility of some of the witnesses against appellant below has been undermined by the witnesses' testimony in the subsequent juvenile court dependency proceeding now before this court in In re L.S., No. F006666.   Finally, I understand felony charges against appellant's coparticipants in the same alleged crimes recently have been settled in the Kern County Superior Court by plea bargains and dismissals resulting in no further incarceration for those participants.

Appellant has the right to prove in a habeas corpus proceeding in the superior court that he stands convicted on the basis of “[f]alse evidence that is substantially material or probative on the issue of guilt or punishment․”  (Pen.Code, § 1473, subd. (b)(1).)   Appellant will have the burden of proving the falsity of the evidence and that it affected the outcome of his trial.  (In re Wright (1978) 78 Cal.App.3d 788, 807–809, 144 Cal.Rptr. 535.)   However, appellant will not be required to prove that the testimony was perjured or that the prosecutor or his agents were aware of the false nature of the testimony.  (Pen.Code, § 1473, subd. (c);  In re Hall (1981) 30 Cal.3d 408, 424, 179 Cal.Rptr. 223, 637 P.2d 690.)

I can only assume that justice will be done as a result of the habeas corpus hearing.

FOOTNOTES

FOOTNOTE.  

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

2.   Of course, the jury also had in its possession verdict forms for each count which did not help since the only victim mentioned in each form was the unnamed “child under the age of 14 years.”

3.   The importance of this point is discussed in II B.

VARTABEDIAN,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

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