[As modified Apr. 25, 2014.]
Santa Clara County Super. Ct. No. C1083378, Trial Judge: The Honorable Andrea Y. Bryan
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Thomas M. Singman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General Dane R. Gillette, Chief Assistant Attorney General Gerald A. Engler, Assistant Attorney General Masha M. Dabiza and Christopher J. Wei, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Giai Van Ngo was first tried by jury in 2011 for the conduct at issue in this appeal. The jury hung on all counts, and defendant was tried again in 2012. The second jury found defendant guilty on four counts: Count One—sexual penetration with a child aged 10 or younger; Counts Two and "Count Four—lewd or lascivious acts on a child by force; and Count Three—simple battery. (Pen. Code, §§ 288.7, subd. (b), 288, subd. (b)(1), 242, 243, subd. (a)). The court imposed a term of 15 years to life, consecutive to a determinate term of 12 years.
On appeal, defendant raises three claims of instructional error arising out of the second trial. First, he contends that an erroneous unanimity instruction, by misstating “2009” as “2010, ” allowed the jury to convict him on Count Four—an offense alleged to have occurred in 2009—based on separate conduct that occurred in 2010. Second, defendant contends the court failed to instruct the jury on the lesser included offense of attempted sexual penetration with respect to Count One. Third, defendant argues the court erroneously instructed the jury on general intent as to the charge of sexual penetration, a specific intent crime.
We hold the court erred in all three respects, but find only the first two errors prejudiced defendant. Because the errors require reversal on only two counts, we will remand for resentencing and possible retrial on those counts only. As to Count One, we will give the prosecution the option of retrying defendant or accepting a conviction of attempted sexual penetration of a child aged 10 or younger.
I. Factual Background
In 2010, defendant was a 66-year-old fruit vendor living in a three-bedroom house in San José. He rented one bedroom of the house to N.T.
(Mother) and her seven-year-old daughter, B.T. Defendant lived in his own, separate bedroom. The evidence concerns two incidents in which defendant touched B.T. while they were in the living room of the shared house. The first incident occurred on an unknown date in 2009. The second incident occurred on July 24, 2010.
A. The 911 Call
On July 24, 2010, Mother called 911 and told the dispatcher, through a Vietnamese interpreter, that defendant had touched B.T.’s stomach while holding her against her will. At trial,  the prosecutor played an audio recording of the call for the jury and provided them with a transcript.
Mother told the dispatcher that B.T. was scared and crying, that B.T. had hit defendant, and that B.T. was trying to push him away. The dispatcher instructed Mother to ask B.T. whether defendant touched her vagina. According to a transcript of the call, Mother gave an unintelligible response to the dispatcher’s instruction. Mother said, however, that she took off B.T.’s pants to examine her and saw that defendant’s fingernail had made a small scratch on B.T.’s stomach. A photograph, later introduced at trial, shows a light, red scratch approximately one to two inches long on B.T.’s stomach.
The dispatcher asked to speak to B.T., who spoke with the dispatcher in English. The dispatcher asked if defendant touched her “privates, ” but B.T. did not understand that word. B.T. said “he touched me everywhere.” The dispatcher asked if defendant told her to keep anything secret, and B.T. said that he did.
The dispatcher asked to speak with Mother again, and requested various details about defendant’s appearance and circumstances. Mother added that he had touched B.T. on another occasion about a year before. Mother said her cousin confronted defendant about the incident, but defendant denied it.
B. Officer O’Neil’s Investigation
San José Police Officer Melinda O’Neil arrived at the house the same day and spoke with B.T. in English. Officer O’Neil recorded her interview with B.T. At trial, the prosecutor played the audio recording of the interview for the jury and provided them with a transcript.
B.T., motioning with her hands, told Officer O’Neil that defendant was “touching me over here.” Seeking to clarify the meaning of B.T.’s hand motions, Officer O’Neil asked, “Okay, so you’re pointing to like your, your breast area, right?” B.T. responded, “Yeah.” Officer O’Neil asked, “And anywhere else?” B.T. responded, “Um, no, just there.”
Officer O’Neil then instructed B.T. to touch herself in the same places where defendant touched her:
“[Question:] Okay. He, did he touch you, can you, can you touch where he touched you, so I can tell exactly?
“[Answer:] Here, here, here, here, all around me.
“[Question:] Okay, your belly?
“[Question:] You’re pointin’ to your belly?
“[Question:] And your, and your breasts, right?
“[Question:] Okay. Do you have a name for that, or do you just call that your, you just say that [is] your chest area, right?
“[Answer:] I didn’t say it to him, but he did it hisself [sic].
“[Question:] Okay. Did he touch anywhere else?
“[Answer:] No, that’s where he touched.”
Officer O’Neil then asked B.T. how many times defendant had previously touched her. B.T. said defendant had touched her “last year.” Officer O’Neil asked what happened and where defendant touched B.T.:
“[Question:] What, what happened last year?
“[Answer:] Last year he even touched me the same time, like this year.
“[Question:] Where did he touch you last year?
“[Answer:] He, he touched over here, here, and all around over here.
“[Question:] Okay. Same spots as today?
“[Question:] Anywhere else?
“[Answer:] No. That’s when he just touched me.”
At trial, Officer O’Neil testified that when B.T. described the incident from 2009, B.T. was waving her hands over the parts of her body where defendant touched her. B.T. was “pointing to her chest area, her abdomen, and a little bit lower than that.”
Officer O’Neil then asked B.T. more questions about when the prior incident happened, but B.T. could not remember what month or what time of year it happened. She only knew that it was 2009. B.T. said the incident occurred in the living room, and that Mother walked into the room and saw it happening.
B.T. said Mother also saw the incident on July 24, 2010. B.T. said defendant did not say anything during the incident. B.T. was mad, and she told defendant she did not like him. B.T. tried to get away, but defendant held on to her to prevent her from escaping. Defendant released her when Mother walked into the room.
B.T. then described further details of the 2010 incident. She said defendant was lying on the living room couch and she was sitting on the couch when he pulled her towards him. Defendant said, “Come here, ” and “Come here right now, ” in Vietnamese, but B.T. did not want to. B.T. said he put his hand up under her shirt. Officer O’Neil asked if defendant touched B.T. “down in this area” while Officer O’Neil pointed towards her own vaginal area. B.T. said, “Yeah.” Officer O’Neil then asked B.T. if defendant touched her on the buttocks, while Officer O’Neil pointed to her own buttocks. B.T. said he did not.
Officer O’Neil then sought to clarify whether defendant touched B.T. in the vaginal area. B.T. did not know any word or name for the area, but Officer O’Neil referred to it by pointing. In response to further questioning, B.T. said defendant’s hand went under her underwear and touched her skin. B.T. added that after touching her, defendant kissed her. Officer O’Neil did not ask any follow-up questions about that allegation, and instead changed to routine questions about B.T.’s daily life.
After some time, Officer O’Neil asked again about the 2009 incident. B.T. pointed to her own vaginal area and said defendant touched her there. B.T. did not recognize the word “vagina” but said her mother referred to that area using a Vietnamese word that sounded like “chim.”
Officer O’Neil then asked B.T. if defendant touched her there in 2009 as well, and B.T. said “Yeah.” B.T. said defendant was lying on a bed in the living room while she was sitting on the couch. Defendant grabbed her and pulled her towards him. B.T. said Mother walked into the room and defendant stopped.
Officer O’Neil then repeatedly asked B.T. if she was sure there were only two incidents, and no other incidents. B.T. consistently responded that there were only two incidents.
Finally, without specifying a time frame, Officer O’Neil asked B.T. if defendant put his fingers inside her vaginal area:
“[Question:] Did he put his um, did he put his fingers inside there?
“[Question:] Um, do you understand what I’m saying by that?
“[Answer:] Um, like you have this area where you go pee, right?
“[Question:] Did he put his fingers in there?
“[Answer:] In here?
“[Question:] In, in, in this area, where you go pee.
“[Question:] Or he just touched the outside area—or did he actually put his finger inside?
“[Question:] In you?
“[Question:] Did that, how did, did that hurt, or-
“[Answer:] Yeah, it does, it hurts.
“[Question:] Does that hurt right now?
“[Answer:] Now, no.”
Officer O’Neil then ended the interview. In her report on the matter, Officer O’Neil wrote, “I was unable to determine whether or not Ngo actually penetrated her vaginal opening with his fingers.” Notwithstanding what she wrote in her report, Officer O’Neil testified at trial that she believed B.T. had been penetrated.
Officer O’Neil did not request a physical examination of B.T. Officer O’Neil testified that she had no experience in sexual assault cases and only a “small amount” of “very limited” training in sexual assaults. Officer O’Neil collected DNA swabs from B.T.’s chest and the scratch on her abdomen, but did not collect a swab from B.T.’s vaginal area. The parties stipulated that DNA on the swab from B.T.’s chest matched defendant’s DNA.
C. Officer Truong’s Investigation
On the same day, San José Police Officer Tam Truong, a certified Vietnamese language officer, interviewed both Mother and B.T. in Vietnamese. He interviewed Mother first. Mother described what she saw earlier that day. She was walking out of her bedroom when she saw defendant’s hand inside B.T.’s pants. His wrist was at the level of the waistband. Defendant was holding B.T. with his arms wrapped around her. He was holding both of her hands. When Mother yelled at him, he let B.T. go, and she ran towards Mother. B.T. was upset. Mother took her into their bedroom, where Mother questioned her about what happened. Mother then called 911.
Mother told Officer Truong that B.T. said defendant touched her on the chest and stomach. Mother said she did not believe defendant had penetrated B.T. Mother thought that if defendant had penetrated B.T., there would have been blood, or B.T. would have shouted, but neither occurred. Officer Truong twice asked Mother if B.T. had ever said defendant had touched her before, and Mother said B.T. had not.
Officer Truong then interviewed B.T., after Officer O’Neil had interviewed her. He recorded the interview without telling B.T. he was doing so. At trial,
the prosecutor played the recording for the jury and provided them with a transcript of an English translation.
B.T. told Officer Truong she was sitting on the arm rest of the couch in the living room at the start of the incident that day. Defendant was pretending to sleep on the couch. He then pulled her towards him and touched her stomach and chest inside her shirt with both hands. Using her hands to demonstrate what happened, B.T. indicated that defendant touched her near her vaginal area with his right hand. Officer Truong asked if defendant touched “the place where you urinate, ” and B.T. responded affirmatively. Officer Truong then asked, “When he touch the place of urinate of yours did he.... he put his whole hand of his in there, or did he touch on the top of the place of urinate of yours?” B.T. responded, “No. Just this place.” Officer Truong testified that B.T. then showed him defendant’s hand went into her underwear up to his wrist. B.T. said his hand did not go as far as her buttocks.
Officer Truong then tried to determine whether defendant penetrated B.T.’s vagina:
“[Question:] Do you think he touched above the hole or the entire hole?
“[Answer:] Above the hole.
“[Question:] Above the hole. Uh. If he touched, did he, he was limp? Did he use the whole hand or just the finger(s)?
“[Answer:] The whole hand.
“[Question:] The whole hand. (When) he touched, he he [sic] caress or did he just put it in?
“[Answer:] He just caressed.
“[Question:] He caressed like this?
“[Question:] He went right and then ...