APPEAL from the Superior Court of Riverside County. Robert W. Armstrong, Judge. (Super.Ct.No. RIF145173)
The opinion of the court was delivered by: Miller J.
CERTIFIED FOR PUBLICATION
(Retired judge of the Los Angeles Super. Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed.
A jury convicted defendant Felix Antonio Arevalo-Iraheta of five counts of lewd and lascivious behavior with a child under the age of 14 (counts 6 through 10--Pen. Code, § 288, subd. (a)).*fn1 The jury deadlocked on five counts of aggravated sexual assault on a child under the age of 14 (counts 1 through 5--§ 269, subd. (a)(1)). The court dismissed counts 1 through 5 upon the People's motion. The court sentenced defendant to an aggregate, determinate prison term of 16 years. On appeal, defendant contends the court erred in permitting the People to amend the information midtrial to add five additional counts (the counts for which defendant was convicted), committed judicial misconduct in ruling on defendant's section 1118.1 motion in the presence of the jury, and in failing to give a unanimity instruction as requested. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The victim's mother moved from El Salvador to Riverside in May 2005. While residing in the United States, mother had two children with defendant. This angered the victim. She wanted her mother to return to El Salvador; she testified that her mother stayed in the United States solely because of her relationship with defendant. The victim wanted her mother to reconcile with her father. Nevertheless, in February 2008, the then 13-year-old victim moved from El Salvador to Riverside to join her mother.
The victim stayed in a converted garage bedroom with her mother, defendant, and her two younger brothers. The victim wanted defendant to move out of the house; she wanted defendant and her mother to break up. The victim believed that her mother could have done better than defendant; she testified she never liked him and still does not.
The victim's mother left for work with her aunt every day, Monday through Friday, between 2:00 to 2:30 p.m. They would not arrive home until between 11:00 p.m. and 1:00 a.m. Defendant worked seven days a week from 10:00 p.m. to 6:30 a.m. He testified he would normally sleep from between 11:00 a.m. and 2:00 p.m., and 4:00 p.m. and 8:00 p.m. every day. He testified he would pick the victim up from school between 3:00 and 3:30 p.m.
The victim testified that sometime in April 2008, defendant came into the bedroom between 5:30 and 6:00 p.m.. He locked the door, told her that he liked her, grabbed her hands, pinned her to the bed, took off her pants, and touched her over her entire body. He told her he wanted to "abuse" her. She screamed for help, to no avail. She couldn't move because his body was on top of her; she unsuccessfully tried to punch him. He held her down by her shoulders; he tried to kiss her, but she would not let him. Defendant then engaged in sexual intercourse with her, lasting "three or four minutes." He told her that if she told anyone she "would have to suffer the consequences"; he would kill one of her family members. The entire episode lasted around 10 minutes. She left the room, crying, to take a bath.
The victim testified that over the ensuing months, defendant engaged in similar acts of sexual intercourse with her, "approximately 75 times." It always occurred in the same room, always while her mother was at work, and always in the same manner. It typically occurred between 5:00 and 5:30 p.m. Defendant always locked the door. On more than 30 occasions she was watching television in another room; defendant would grab her and carry her into the bedroom. Whenever she would cry for help, he would cover her mouth. She frequently cried for help. He always tried to kiss her on the mouth, but she never let him; she never kissed him back. She resisted telling her mother because she was afraid her mother would blame her for the encounters.
The victim testified that in August 2008, she attempted to commit suicide because she wanted the molestation to stop. She took an entire jar of Advil and another bottle of expired pills. She became dizzy, fell asleep, and awoke the next day vomiting. She then told her aunt what had been occurring. Her aunt informed her mother and called the police.
On August 10, 2008, Officer George Sepulveda responded to the victim's home with respect to a reported child sexual assault. After getting background information from the victim, he took defendant to the police station.*fn2 Officer Sepulveda read defendant his Miranda*fn3 rights, which defendant waived. He then interviewed defendant.
Defendant initially denied engaging in sexual contact with the victim; however, he later admitted to having sex with her "about six times." Defendant informed the officer the incidents began in the past month, July 2008. They each occurred around 4:00 p.m. in his bed. The last time he engaged in intercourse with her was around five days earlier.
Defendant maintained that the victim initiated all the encounters. While he was sleeping she would get in his bed, hug him and "abuse" him. She would take off her clothes. He initially resisted her advances, but later lost control. She threatened to tell her mother and/or the police that defendant was having sex with her, unless he had sex with her. He relented out of fear. "She was always, always after" him. "She wanted me to be hers." He was with her "[b]ecause she liked it." Later, when he told her he was going to move out, she said she couldn't live without him; she threatened to kill herself if he left. He stayed because he did not want her to kill herself.
At trial defendant testified that the victim flirted with him, dressed provocatively, asked her how a man should treat a woman, and asked him if he liked her. The first physical encounter between them occurred in May 2008, around 6:00 p.m. He was sleeping and awoke to the victim hugging and caressing him. He told her to leave the room. He did not inform the victim's mother of the victim's behavior because the victim threatened to go to the police.
Defendant testified the first time they had intercourse was approximately eight to ten days after the first physical incident. She asked him if he knew how to please a woman; he responded that he did not. She said that she was "a professor of kissing," "a master kisser." The victim told defendant she would teach him. He told her he could not be with her, but she "insisted." She got on top of him; she said "'I want you to please me. I want to feel like a woman.'" She took off her clothes and his shirt; he pulled his pants down. He became aroused.
Defendant engaged in sexual intercourse with the victim because he "had to do it." He knew "it was wrong, but [he] had no other choice because otherwise" her family would exact revenge or the victim would call the police. They engaged in intercourse ...