California Court of Appeal Feb 11, 2025 No. E082410Unpublished
Filed 2/11/25 P. v. Estrada CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082410
v. (Super.Ct.No. SWF2100524)
ANDREW ESTRADA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III,
Judge. Affirmed.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley, Britton B. Lacy,
and Evan Stele, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant challenges his conviction on 22 counts of child sexual abuse on the
ground that the trial court gave an improper unanimity instruction allowing conviction on
all 22 counts if the jurors were unanimous in finding he committed only one act of abuse.
We conclude the instruction adequately identified the 22 individual counts and instructed
the jurors that they must unanimously find 22 separate acts of abuse occurred.
I
FACTS
A. The Evidence of Molestation
Defendant and appellant, Andrew Estrada, molested his young daughter (identified
in court proceedings as Jane Doe) repeatedly for years.1 Once or twice a week over five
years, Estrada would isolate Doe and touch her vagina. Doe said she “was probably in 1st
grade” when the sexual abuse started, and it ended when she was 13 or 14 years old. The
family moved to California in July 2014. Estrada briefly stopped molesting her while
they lived with his sister and her family, but resumed when they moved into their own
apartment in Murietta in late July or early August 2014. After that, he molested her once
or twice a week until 2016, when he stopped “he said because I got older.”
Doe said Estrada would have her drink a lot of water during the day and prevent
her from using the restroom. He would make sure her siblings were in their own rooms
and take Doe into his bedroom. He would put towels down, have Doe sit on top of his
stomach, straddling him, and then urinate. Sometimes he would touch her clitoris while
1 The trial court granted a motion to keep Jane Doe’s identity confidential.
2
she urinated. Doe said Estrada was rough and sometimes hurt her. Doe said Estrada put
his mouth on her vagina while she urinated on “a handful” of occasions. She said this
happened four or five times. Doe thought his conduct was “gross” and said she felt “very
violated,” but she was scared he would be angry and target her siblings if she resisted.
Estrada would tell Doe she was pretty and that he loved her. He also told her she
should take what they were doing “to the grave” and warned if she told anyone, “[her]
mom would be really depressed” and “wouldn’t be able to afford stuff.” He also said the
police should not be trusted and would “take him away and throw him in jail.” Doe said
she felt scared, alone, and responsible for keeping their secret. She thought the abuse was
“just something I was going to have to live with” and no one would believe her if she
disclosed it. She told no one until she was in eighth grade, when she told a friend she
begged not to tell anyone else.
Doe struggled with depression and engaged in self-harm. When Estrada learned
Doe was cutting herself and spoke to her, she said it was because of the molestation she
endured when she was younger. Estrada started crying, said he was very sorry, and said
he had thought about committing suicide because of what he had done. He repeated his
warning that reporting the abuse would result in the police coming and Doe’s mother
being depressed and alone. Doe felt like she was the problem and no one else could know
about the abuse.
In March 2020, around four years after Estrada had stopped molesting her, Doe
disclosed the sexual abuse to her brother. Her brother cried and was “very, very upset,”
3
but Doe asked him to keep it a secret. About a year later, when she was 18 years old, Doe
told Estrada’s wife, her adoptive mother, what he had done. Her adoptive mother felt sick
and started crying. She confronted Estrada, but did not know who to believe after he
denied the abuse. Doe also told her sister around the same time. About a week later, her
brother disclosed the abuse to a girlfriend’s family, and law enforcement became
involved.
Estrada once again told Doe the police would take him away to jail and she should
not trust them. On another occasion, Estrada hugged Doe and started crying and told her
how sorry he was. However, at trial, Estrada denied the abuse and denied apologizing.
B. Instructing the Jury on Unanimity
This appeal concerns the trial court’s instruction on the need for jury unanimity on
each count. The court raised the question whether a unanimity instruction was required.
The prosecutor argued the instruction was unnecessary because the separate counts were
“all listed individually,” each with a specific time frame.
The court asked whether the prosecutor would “be presenting evidence on
multiple acts to prove a single count” or “focus on, hey, this is what happened on Count,
say, 5 on this date?” The prosecutor replied, “I’m explaining it happened multiple times,
but it’s being charged as once a month for the two-year period. . . . It occurred however
many times, but we’re charging it as once a month. I’m going to tell them you need to
find that it happened at least once a month to be able to find him guilty.”
4
In the end, the court decided to give a unanimity instruction, a decision the
prosecutor supported. Defense counsel objected, saying “I’ll just object and do what you
think is right. . . . I don’t think [the jurors] are going to sit back there and figure out
whether it was a Tuesday or a Thursday.” Defense counsel agreed with the proposed
wording of the unanimity instruction.
The court instructed the jury using CALCRIM No. 3500. That pattern jury
instruction reads: “The defendant is charged with ___________ <insert description of
alleged offense> [in Count _____] [sometime during the period of _________ to
___________]. [¶] The People have presented evidence of more than one act to prove
that the defendant committed this offense. You must not find the defendant guilty unless
you all agree that the People have proved that the defendant committed at least one of
these acts and you all agree on which act he committed.” (CALCRIM No. 3500.)
The court filled in the blanks in CALCRIM No. 3500 for count 1 (oral copulation
with a minor) in one paragraph: “The defendant is charged with Count 1 Aggravated
Sexual Assault of Child Under 14 Years: Oral Copulation by Force, Fear, or Threats
sometime during the period of July 4, 2014 through April 3, 2016.” The court modified
the pattern instruction by adding a second paragraph to fill in the blanks for counts 2
through 22 (lewd and lascivious acts with a minor): “The defendant is charged with
Counts 2-22 Lewd and Lascivious Act by Force or Fear sometime during the period of
July 4, 2014 through April 3, 2016.” The court gave the last portion of the instruction
without alteration: “The People have presented evidence of more than one act to prove
5
that the defendant committed this offense. You must not find the defendant guilty unless
you all agree that the People have proved that the defendant committed at least one of
these acts and you all agree on which act he committed.”
Next, the court instructed the jury using CALCRIM No. 3515, directing the jury to
treat each count separately. “Each of the counts charged in this case is a separate crime.
You must consider each count separately and return a separate verdict for each one.”
In closing argument, the prosecutor explained how to apply the unanimity
instruction. “The first count, the date ranges go from July 4, 2014 . . . through April 3,
2016. So one count in that two-year period, he orally copulated her.” She explained “the
other 22 counts are one time a month from the date they moved on July 4, 2014, until the
day before she turned 14 years old. So once a month, even though she testified it
happened more than that.”
Defense counsel told the jurors they needed to decide whether Jane Doe told them
the truth even though Estrada “got on the stand, under oath, and said absolutely none of
that happened.” Counsel said “there’s a lot of charges in this case” and if the jurors
“decide this crazy event happened only once, you would find him guilty one time.”
After closing arguments, the court reminded the jurors, “Your verdict on each
count must be unanimous. This means that, to return a verdict, all of you must agree to it.
[¶] . . . [¶] If you are able to reach a unanimous decision on only one or only some of the
charges, fill in those verdict forms only.”
6
The jury found Estrada guilty on all 22 counts separately and filled out a separate
verdict form for each.
II
ANALYSIS
Estrada argues the unanimity instruction was erroneous and misleading “because it
told the jury that finding ‘at least one’ of the charges proven supported returning guilty
verdicts on all charges, as long as the jury agreed which count was proven.” As such, he
argues, the instruction invited the jury to resolve “the entire group of 22 charges” by
deciding that one charged act occurred provided they agreed “ ‘which act’ of the 22
charges was proven.”
We review the adequacy of jury instructions de novo and ask “whether ‘there was
a reasonable likelihood the jury applied the challenged instruction in an impermissible
manner.’ ”2 (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, abrogated on another
ground by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) We look to the entire charge,
rather than considering parts of the instructions in isolation, and make allowance that a
“theoretical possibility of confusion [may be] diminished by the parties’ closing
2 The People argue Estrada forfeited his challenge to the instructions. However, “failure to object to instructional error will not result in forfeiture if the substantial rights of the defendant are affected. [Citations.] Here, [appellant] claims that the flawed instructions deprived him of due process, and because this would affect his substantial rights if true, his claim is not forfeited.” (People v. Mitchell (2019) 7 Cal.5th 561, 579- 580.) In any event, since the issue is purely legal and addressing the merits will “forestall a petition for writ of habeas corpus based on a claim of ineffectual counsel,” we exercise our discretion to reach the merits. (People v. Williams (2000) 78 Cal.App.4th 1118, 1126.)
7
arguments.’” (People v. Hajek and Vo, at p. 1220.) We presume jurors to be intelligent
and capable of understanding and applying instructions. (Ibid.)
There is no question it would have been improper for the court to instruct the jury
it could convict Estrada of all 22 counts in this case if they unanimously found he
committed one of the charged acts of sexual abuse but disagreed as to the other charged
acts. The Constitution requires a unanimous verdict in criminal cases, which means “the
jury must agree unanimously the defendant is guilty of a specific crime.” (People v.
Russo (2001) 25 Cal.4th 1124, 1132.) An instruction that the jury must unanimously
agree on the criminal act underlying a count is required when the number of similar,
separately chargeable criminal acts shown by the evidence exceeds the number of crimes
charged. (Ibid.) Such an instruction guards against the danger that a defendant will be
convicted “even though there is no single offense which all the jurors agree the defendant
committed.” (People v. Sutherland (1993) 17 Cal.App.4th 602, 612.)
Here the prosecution charged Estrada with 22 separate counts. They sought to
prove Estrada committed one act of forced oral copulation on a minor between July 4,
2014 and April 3, 2016 and that he committed 21 separate counts of lewd and lascivious
conduct on a minor, one time a month, over the same 21-month period. However, they
offered evidence that each kind of sexual abuse happened more times than charged. Doe
testified that Estrada put his mouth on her vagina four or five times. She testified that he
committed other acts of abuse once or twice a week from the time they moved to
Murietta in 2014 to when she turned 14 years old in 2016. The instructions directed the
8
jurors that they would have to agree unanimously on at least one act which constituted
the crimes as charged.
The trial court also directed the jurors they would have to agree on which
constituted the offense for each count separately. “Each of the counts charged in this case
is a separate crime. You must consider each count separately and return a separate verdict
for each one.” Estrada does not acknowledge this instruction in his opening brief, but it is
critical. We consider the jury charge as a whole and this instruction, which followed
immediately after the unanimity instruction, makes clear the jury could not convict
Estrada of 22 counts based on unanimous agreement he committed one offense. In
addition, the prosecutor explained that to convict Estrada on all 22 counts, the jury would
have to find Estrada orally copulated Doe one time between July 4, 2014 and April 3,
2016, and otherwise sexually abused her at least one time each month over the same
period. If there was any room for doubt, the trial court clarified the “verdict on each count
must be unanimous” and if the jurors were “able to reach a unanimous decision on only
one or only some of the charges, fill in those verdict forms only.” We conclude there is
no reasonable likelihood that the jury was confused by the instructions and misapplied
them in the way Estrada suggests.
Estrada relies on People v. Vasquez (2017) 14 Cal.App.5th 1019 (Vasquez) for the
proposition that giving CALCRIM No. 3500 was improper and the court “should have
given CALCRIM No. 3501 or adapted the language of CALCRIM No. 3500 to make
9
clear that it was not adequate merely to find ‘at least one’ charge proven true and agree
which count was proven in a case with 22 separate counts.”3
In Vasquez, the defendant faced several charges and the trial court instructed the
jury using CALCRIM No. 3500, including by instructing “[y]ou must not find the
defendant guilty unless you all agree that the People have proved that the defendant
committed at least one of these acts and you all agree on which act he committed.”
(Vasquez, supra, 14 Cal.App.5th at p. 1047.) The Court of Appeal observed that “it
appears that the trial court intended for the instruction to state” that the jury needed to
find “at least one of these acts [for each offense].” (Ibid., italics added.) The court did not
reverse the conviction on this basis but did reverse on another ground and advised the
trial court on remand to “ensure that the instruction is properly modified to account for
such multiple counts.”4 (Ibid.)
3 Estrada argues the trial court should have used pattern instruction CALCRIM No. 3501, which is appropriate where the evidence takes the form of “generic testimony” about recurrent events without specific times. (See People v. Jones (1990) 51 Cal.3d 294, 321-322.) Here, the prosecution did provide time periods for the individual counts and did elicit evidence to establish offenses occurred in each period. By contrast, in Vasquez, there were several offenses, and the prosecution made no effort to establish when they occurred. (Vasquez, supra, 14 Cal.App.5th at p. 1046.) CALCRIM No. 3501 might fit this case because the People introduced testimony of more acts than those charged. But any error in failing to give that instruction was not prejudicial. The instruction does not benefit a defendant, but instead provides the prosecution with another means of establishing guilt unanimously, by instructing the jury that the defendant is guilty not only if they all agree on the act committed, but also if they agree the defendant committed all the acts alleged. (Vasquez, at p. 1046.) 4 The court recommended the following modification of CALCRIM No. 3500: “The People have presented evidence of more than one act to prove that the defendant committed [each of] these offenses. You must not find the defendant guilty [of each offense] unless you all agree that the People have proved that the defendant committed at
10
Though including such a modification is preferable, omitting it was not erroneous
in this case, in view of the full jury charge, the prosecutor’s explanation in closing, and
the trial court’s clarification. The version of CALCRIM No. 3500 used here did not
specify the jury must make a unanimous finding for each offense; however, the court
accomplished the same end by setting out the separate counts by time period and adding
the instruction that “Each of the counts charged in this case is a separate crime. You must
consider each count separately and return a separate verdict for each one.” Both the
prosecution and the court then clarified that the jurors would have to reach a unanimous
verdict as to each count. We assume the jury followed these instructions and conclude
there is no reasonable likelihood the jury was confused about the need to make a separate,
unanimous finding on each count.
Even if it was error not to modify the jury instruction as suggested in Vasquez, we
would find the error harmless. People v. Matute (2002) 103 Cal.App.4th 1437, 1449-
1450, found harmless the court’s error in failing to give a unanimity instruction where the
need for unanimity was clear from the general instructions and prosecution’s arguments.
There, the child victim testified to several specific incidents of rape and testified
generically that defendant raped her every week after the family moved to California. (Id.
at p. 1441.) The trial court gave no unanimity instruction, and the jury found defendant
guilty of 15 counts of rape. (Id. at pp. 1440, 1447, 1450.) The Court of Appeal held the
trial court should have given a unanimity instruction, but concluded the error was
least one of these acts [for each offense] and you all agree on which act he committed.” (Vasquez, supra, 14 Cal.App.5th at p. 1047, italics added.)
11
harmless beyond a reasonable doubt because the prosecutor explained in closing
argument that the 15 counts were based on one rape per month during the 15 months after
the move to California and before the victim disclosed the rapes. (Id. at pp. 1448-1450.)
The court concluded “[t]here could be no confusion in the jury’s mind that they were
being asked to decide whether appellant raped [the victim] 15 times over the period from
August 1999 to November 2000.” (Id. at p. 1449.) Here, the jury also could not have been
confused. The prosecutor told the jurors they must decide whether Estrada touched Doe
sexually at least once a month over the 21 months from the time the family moved to
California until the molestation stopped. It is clear beyond a reasonable doubt that even if
there was error in the wording of the unanimity instruction, that did not affect the verdict.