People v. Fernandez, H004537

CourtCalifornia Court of Appeals
Citation214 Cal.App.3d 991,263 Cal.Rptr. 139
Decision Date13 October 1989
Docket NumberNo. H004537,H004537
PartiesPreviously published at 214 Cal.App.3d 991 214 Cal.App.3d 991 The PEOPLE, Plaintiff and Respondent, v. David Michael FERNANDEZ, Defendant and Appellant.

Page 139

263 Cal.Rptr. 139
Previously published at 214 Cal.App.3d 991
214 Cal.App.3d 991
The PEOPLE, Plaintiff and Respondent,
David Michael FERNANDEZ, Defendant and Appellant.
No. H004537.
Court of Appeal, Sixth District, California.
Oct. 13, 1989.
Review Granted Feb. 15, 1990.

Page 142

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Gerald A. Engler, and Violet M. Lee, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Harvey R. Zall, State Public Defender, Kent Barkhurst, Deputy State Public Defender, San Francisco, for defendant and appellant.


CAPACCIOLI, Acting Presiding Judge.

Defendant David Michael Fernandez appeals from judgment entered after a jury found him guilty of 155 counts of lewd and lascivious conduct upon a child and one count of lewd conduct by force (Pen.Code, § 288, subds. (a) and (b) (hereafter sections 288(a) and 288(b)) 1. He admitted having a prior "serious felony" conviction for rape

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and having served a prior prison term for various felonies (§§ 667, 1192.7, subd. (c)(3), and 667.5) and was sentenced to 330 years in prison. On appeal, he claims the prosecution failed to present sufficient specific evidence of each count. He also claims the court gave an erroneous unanimity instruction, erred in failing to grant a mistrial due to jury misconduct, and committed numerous sentencing errors. We affirm the conviction but remand the matter for resentencing.


Defendant and Cathy were married for fourteen years and had three children, including a daughter R., who was born in 1976 and, at the time of trial, was 11 years old. R. attended third grade at Glenview School in Gilroy from September 1984 to June 1985. She repeated third grade, spending the first half at Glenview and the second half at El Roble school in Gilroy. She attended fourth grade at El Roble.

R. testified that her father engaged in three types of lewd conduct with her. Using an incident that occurred during the summer of 1987, between third and fourth grade, she explained that defendant told her to go into his bedroom and lay on her back. After removing his clothes, defendant straddled her and rubbed his penis against her vagina until he ejaculated. Thereafter, he cleaned both of them off with a towel. R. testified that defendant simulated intercourse in this way "a lot," twice a week during third and fourth grades and the summers through the fourth grade. She also said that once, when she was 11 years old, she told defendant she did not want to undress and tried to leave the room, but defendant hit her in the face, giving her a "fat lip." He then simulated intercourse with her.

R. testified that at least twice a week during this same time period, more often than simulated intercourse, defendant had her masturbate him with her hand. She also said that at least once during third and again fourth grades, defendant had her orally copulate him until he ejaculated. 2

R. testified that she once told her mother about the molestation, and her mother became upset and confronted defendant, but he denied everything.

R. said that she wrote about being molested in her diary. Her Aunt Tina, defendant's sister, discovered the entry, asked R. about it, and immediately called Child Protective Services. Thereafter, the police interviewed R.

On July 23, 1987, Officer Raymond Hansell of the Gilroy Police Department spoke to R. She told him that on July 20 and 21, 1987, defendant simulated intercourse with her. She also said the molestation started when she was eight years old and that she orally copulated defendant.

R. testified that defendant came home while she was talking to Officer Hansell and stood in the hallway shaking his head. She took this as a signal to be quiet about the molestation.

R.'s brother Michael testified that defendant would call R. into his bedroom for a "backrub" about four times per week. The door was always shut, except on one occasion defendant come out wearing only a shirt and underwear. He saw R. inside the room wearing only her underwear. Michael said that R. looked upset whenever she came out of defendant's bedroom but never explained why. He also recalled a time when R. went into defendant's bedroom and came out with a "fat lip."

The defense sought to impeach R.'s credibility by attacking particulars of her testimony and showing the improbability that she was molested at certain times because other adults were there.

Officer Joe Ramirez of the Gilroy Police Department testified that when he interviewed R. on July 29, 1987, she said she orally copulated defendant on July 20, contrary to what she told Officer Hansell.

Page 144

Defendant's mother testified that she came over to defendant's house to look after his children on July 20 because neither R.'s mother nor defendant could be there. She said she was there from 2:45 p.m. until 1:00 a.m. the next morning.

Defendant's wife Cathy, who was divorcing him at the time of trial, testified that she stayed home from work for a period of time the previous year due to an injury. She could not recall how long she was home but was on heavy medication and slept a lot. She said that everyone in the family gave defendant backrubs in his bedroom.


I. Due Process Violation

Relying primarily on People v. Van Hoek (1988) 200 Cal.App.3d 811, 246 Cal.Rptr. 352, defendant claims that except for the few instances when R. recalled particular acts of molestation, the prosecution failed to satisfy its burden to present specific evidence of the remaining offenses. He argues that the evidence as to these offenses was too vague and generic to support convictions on individual counts. We disagree.

Preliminarily, we note that in cases where one offense is charged but evidence is presented of more than one act, any one of which could constitute the charged offense, the "either/or" rule applies to protect the defendant's rights to notice of the charges against him and to jury unanimity on the particular act or acts forming the basis of a guilty verdict: either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that the defendant committed the same specific act. (People v. Callan (1985) 174 Cal.App.3d 1101, 1111, 220 Cal.Rptr. 339; see People v. Castro (1901) 133 Cal. 11, 12-13, 65 P. 13; People v. Williams (1901) 133 Cal. 165, 168, 65 P. 323.)

In People v. Van Hoek, supra, 200 Cal.App.3d 811, 246 Cal.Rptr. 352, the defendant was charged with seven counts of unlawful sexual conduct. Each count was charged with having occurred on or about "April 1983" and/or on or about 1980, 1981, 1982, 1984, and 1985. (Id. at pp. 812-813, 246 Cal.Rptr. 352.) The victim testified that the defendant started touching her regularly when she was three years old. At one particular address, it occurred twice a day and at least once a month. In 1983 and 1984, the defendant also had sexual intercourse with her five or six times. The prosecution did not select a particular act to prove each count, but the trial court gave a unanimity instruction.

On appeal, the court asserted that while the "either/or" rule applied when there is specific evidence of several acts, any of which could support a guilty verdict, the rule was irrelevant when the evidence showed a continuous series of identical unlawful acts over an extended period of time but failed to establish any specific act to support the charges.

The court reasoned, "A serious problem with the vague charges and the testimony upon which they are based is that the defendant's ability to defend is severely hampered. A 'resident child molester' 3 would virtually be 0/00«, precluded from presenting an alibi defense to the acts unless he could account for every time he was in the presence of the victim. In the instant case, defendant, because he was the victim's father and lived in the household, has no idea what specific time or specific act he has to defend against. The defendant would virtually have to account for every day of the last five years during which he had contact with [the victim] to enable him to present any kind of alibi defense. [p] Also, the defendant is precluded from attacking the victim's testimony in any way other than a general attack. The defendant is unable to attack specifics of the act to undermine the victim's credibility as to certain details which might convince the jury that the

Page 145

particular act did not occur as testified to by the victim." (Id. at p. 817, 246 Cal.Rptr. 352.)

The court acknowledged the unique problems caused by the repeated molestation of young children by resident family members but nevertheless reversed the judgment, concluding that convictions based on unspecific, uncorroborated evidence of numerous unlawful acts deprived the defendant "of the right to mount an adequate defense" and did not require the prosecution "to meet their burden of proving the defendant committed a particular act on a particular and specific occasion." (Id. at p. 818, 246 Cal.Rptr. 352.)

Van Hoek has not been universally embraced. The Fifth District, of course, continues to apply it. (People v. Atkins (1988) 203 Cal.App.3d 15, 249 Cal.Rptr. 863; People v. Luna (1988) 204 Cal.App.3d 726, 250 Cal.Rptr. 878; People v. Vargas (1988) 206 Cal.App.3d 831, 253 Cal.Rptr. 894; see also People v. Jeff (1988) 204 Cal.App.3d 309, 345, 251 Cal.Rptr. 135 [conc. and dis. opn. of Best, J.] ). The Fourth District appears to have accepted it. (People v. Jones (1989) 209 Cal.App.3d 89, 96, fn. 3, 257 Cal.Rptr. 342, review granted June 29, 1989 (S010191).) But the First, Second and Third Districts reject it. (People v. Moreno (1989) 211 Cal.App.3d 776, 259 Cal.Rptr. 800 [1st Dist., Div. 2]; People v. Obremski (1989) 207 Cal.App.3d 1346, 255 Cal.Rptr. 715, [2d Dist.; Div. 6]; People v. Coulter...

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    • July 3, 1997 and night, and also given that certain of the illicit sexual conduct took but moments to perform, the court in People v. Fernandez, 263 Cal.Rptr. 139, 147 (1989), 11 stated: "[T]he similarity and repetition of the acts would make it difficult, if not impossible, for an adult, let alone ......
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