APPEAL from a judgment of the Superior Court of Riverside, Mac R. Fisher, Judge. Affirmed in part, reversed in part and remanded with directions. (Super. Ct. No. RIF124639).
The opinion of the court was delivered by: McDONALD, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Peter Frances Milosavljevic appeals a judgment following his jury conviction on 38 counts of rape and various related offenses involving multiple victims. On appeal, he contends: (1) the trial court erred by not giving a unanimity instruction regarding one count and by giving an incorrect unanimity instruction regarding other counts; (2) the evidence is insufficient to support his convictions regarding one victim whose testimony was inherently unbelievable; (3) the trial court erred by not instructing on the definition of the term "intoxicating agent" for purposes of the two Penal Code*fn2 section 222 charged offenses; (4) there was cumulative prejudicial error; and (5) the section 1465.8 fine imposed by the court exceeded the authorized amount.
FACTUAL AND PROCEDURAL BACKGROUND*fn3
On March 14, 2007, an information was filed charging Milosavljevic with 57 counts of forcible rape, forcible sodomy, forcible oral copulation, forcible penetration by a foreign object, false imprisonment, administering an intoxicating agent with intent to commit a felony, assault by means of force likely to produce great bodily injury, and other related offenses involving 10 victims. The information also alleged certain related enhancements and that he had two prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Following a trial during which the jury heard the testimonies of the alleged victims and Milosavljevic, the jury found him guilty on 38 of the 39 counts remaining after 18 of the original 57 counts were dismissed.*fn4 The jury also found true five enhancement allegations related to certain counts. The jury found him not guilty on count 3 (§ 289, subd. (a), forcible penetration by a foreign object on Jane Doe I). In a bifurcated bench trial, the court found true the allegation that Milosavljevic had two prior serious or violent felony convictions within the meaning of the three strikes law. The trial court sentenced Milosavljevic to 38 consecutive terms of 25 years to life for each of his offenses, together with a consecutive enhancement of 15 years to life related to count 16, for an aggregate term of 965 years to life in prison.*fn5 Milosavljevic timely filed a notice of appeal.
Milosavljevic contends the trial court erred by not giving a unanimity instruction regarding count 52 and by giving an incorrect unanimity instruction regarding the other counts.
After listing certain offenses allegedly committed by Milosavljevic against nine of his alleged victims (which list omitted a description of count 52), the trial court instructed with a modified version of CALCRIM No. 3501 on the requirement of juror unanimity regarding the specific act constituting each offense:
"The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless:
"1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree which act he committed for each offense; [¶] OR
"2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged."
Milosavljevic did not object to, or request modification or clarification of, that instruction.
"The right to a unanimous jury in criminal cases is guaranteed by the California Constitution. (Cal. Const., art. I, § 16; [citation].)... [¶] It is established that some assurance of unanimity is required where the evidence shows that the defendant has committed two or more similar acts, each of which is a separately chargeable offense, but the information charges fewer offenses than the evidence shows. [Citation.] [A unanimity] instruction is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.... [I]t is generally agreed that under such circumstances, a unanimity instruction of some kind is required to ensure the defendant's constitutional right to a unanimous verdict. [Citations.]" (People v. Sutherland (1993) 17 Cal.App.4th 602, 611-612.) In People v. Russo (2001) 25 Cal.4th 1124, the California Supreme Court stated: "[T]he jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Id. at p. 1132.)
"In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given. [Citation.] But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim." (People v. Jones (1990) 51 Cal.3d 294, 321-322.) Accordingly, a trial court must sua sponte give an appropriate unanimity instruction (e.g., CALCRIM No. 3500 or 3501) when the evidence shows more than one act could constitute an element of a charged offense.
Milosavljevic asserts the trial court erred by omitting count 52 from its list of charged offenses to which its unanimity instruction (i.e., modified CALCRIM No. 3501) applied. Count 52 alleged that he violated section 222 when in or about May 2005 "he administered [to Jane Doe XI] [an] intoxicating agent to assist the commission of a felony." He argues that because there was evidence presented at trial showing multiple acts, any of which could have constituted an ...