Filed 8/31/26 P. v. Dieck CA3 NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT
(Placer)
THE PEOPLE, C103404 Plaintiff and Respondent, (Super. Ct. No. 62-173707)
v.
AUSTIN WILLIAM DIECK, Defendant and Appellant.
Defendant Austin William Dieck sexually abused his girlfriend’s daughter, L.L., over nearly a decade. He also physically abused his girlfriend C.R. and sexually abused another minor victim, S.Y. For the sexual abuse of L.L., a jury found defendant guilty on two counts of sexual intercourse with a child 10 years of age or younger, one count of sexual penetration of a child 10 years of age or younger, eight counts of lewd conduct with a child under 14 years of age, and one count of lewd conduct with a child of 14 or 15 years. Regarding the abuse of C.R., the jury found defendant guilty of inflicting corporal injury on a cohabitant and found that he inflicted great bodily injury. As for the abuse of S.Y., the jury found defendant guilty of lewd conduct with a child under 14 years of age. With regard to the sexual offenses, the jury found that defendant engaged in substantial sexual conduct with L.L. and that he committed a lewd act against more than one victim. The trial court sentenced defendant to an aggregate indeterminate
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prison term of 255 years to life consecutive to a determinate term of eight years eight months.
Defendant now contends (1) the evidence is insufficient to support one of his sexual intercourse convictions, and (2) the trial court should have given the unanimity instruction applicable in sexual abuse cases rather than the standard unanimity instruction. We conclude (1) sufficient evidence supports the challenged sexual intercourse conviction, and (2) any error in giving the standard unanimity instruction was harmless. We will affirm the judgment.
BACKGROUND
Defendant and C.R. started a romantic relationship in 2005. C.R.’s daughter, L.L., was a year old at the time. Defendant, C.R., and L.L. lived in Trinity County until 2007, when they moved to Antioch. In the meantime, in 2006, defendant and C.R. had a son together, D.D. In 2011, when L.L. was seven years old, they moved to Foresthill.
Over time, defendant’s relationship with C.R. became controlling and abusive.
C.R. said he would “manhandle” her and throw her around. On one occasion, when they lived in Antioch, defendant broke her wrist when he threw her into a fireplace. On another occasion, after they moved to Foresthill, defendant knocked her unconscious when he hit her on the head with a glass baking dish. On Saint Patrick’s Day about four years later, defendant drank alcohol at home while C.R. went to a bar with some friends. When she got home from the bar, the front door was locked, so she “bang[ed] on the door to have him unlock [it].” Defendant told her to leave. When she refused, he opened the door and shoved her down the front stairs, breaking her leg. That incident supported defendant’s conviction for inflicting corporal injury on a cohabitant.
Defendant also sexually abused L.L. many times over nearly a decade. The sexual abuse began in Antioch when L.L. was about six years old. While C.R. was going to school and working, defendant would bring L.L. and D.D. to his friend Howard’s apartment when Howard was not there. L.L. testified: “Me and my brother would watch
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TV, and then [defendant] would offer to massage my back, and he would lay me on the floor next to the couch … and he would slide my pants down and do inappropriate things.” L.L. said defendant would touch her vagina with his fingers inside of her pants. She explained that after sliding her pants and underwear down, defendant would rub his penis against her vagina. Sometimes defendant would do so “through [his] clothing,” but other times she could feel his penis make “skin to skin contact” with her vagina. Although L.L. initially testified at trial that defendant’s penis did not “go inside” her vagina at Howard’s apartment, after reviewing prior statements she made during a forensic interview, L.L. acknowledged telling the interviewer that defendant did put his penis inside her vagina during those incidents. The sexual abuse at Howard’s apartment made her “confused,” and afterwards, they “would just go back to doing normal things, watching TV like nothing happened.” Those incidents were charged as one count of sexual intercourse with a child 10 years of age or younger and two counts of lewd conduct with a child under 14 years of age. The alleged sexual intercourse incident at Howard’s apartment is the one challenged by defendant for insufficient evidence in this appeal.
When they moved from Antioch to Foresthill, the sexual abuse stopped for a period of time. It started again when L.L. was nine or 10 years old, after they moved into a trailer. Defendant would come into her bedroom in the middle of the night, lie down next to her, start “cuddling” and “touching” her, and then, as L.L. put it, “he would try to put his penis inside of me.” L.L. “moved around” to prevent him from fully penetrating her vagina, but there was “slight penetration.” Defendant also touched her vagina with his fingers, resulting in slight penetration. That happened “for years,” not “every single night,” but repeatedly. When asked whether it happened “more than two times a year” when she was between the ages of nine and 13 years old, L.L. answered: “Definitely.” The last incident of sexual abuse committed against L.L. occurred when she was 14 years old. While C.R. was in Hawaii for two weeks, L.L. stayed at a friend’s house for the first
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week, but when L.L. got home, defendant came into her room that night, and as she put it, “did what he usually does.” Those incidents supported one count of sexual intercourse with a child 10 years of age or younger, one count of sexual penetration of a child 10 years of age or younger, six counts of lewd conduct with a child under 14 years of age, and one count of lewd conduct with a child of 14 or 15 years.
C.R. broke up with defendant after he pushed her down the stairs, and after she started dating someone else, L.L. disclosed the abuse to her mother’s new boyfriend. The boyfriend reported the abuse to law enforcement. L.L.’s forensic interview was not admitted into evidence. However, the detective who set it up testified that L.L. “disclosed sexual abuse by [defendant] during the interview.”
After the sexual abuse committed against L.L. came to light, another victim, S.Y., disclosed to her father that defendant had sexually abused her when she was seven or eight years old. When the abuse occurred, sometime between 2013 and 2015, her father was dating defendant’s sister. S.Y. testified that in one incident, defendant got into a sleeping bag with her, and while he was tickling her she noticed he was “humping” her. On another occasion, while she was sitting on defendant’s lap, she could feel him moving his groin against her. The conduct supported one count of lewd conduct with a child under 14 years of age.
DISCUSSION
I
Defendant challenges the sufficiency of the evidence supporting the sexual intercourse conviction that was based on his conduct at Howard’s apartment in Antioch. Specifically, defendant argues that “[b]ecause L.L. did not testify to any penetration, no matter how slight, of her vagina during the charged period, the conviction … must be reversed.”
“To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it
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contains evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt. [Citations.] We need not be convinced of the defendant’s guilt beyond a reasonable doubt; we merely ask whether ‘ “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] We must draw all reasonable inferences in support of the judgment. [Citation.] It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. [Citation.]” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)
Penal Code section 288.7, subdivision (a), prohibits “[a]ny person 18 years of age or older” from having “sexual intercourse … with a child who is 10 years of age or younger.” The elements of this offense are: “(1) The defendant engaged in … sexual intercourse … with the victim; (2) when the defendant did so, the victim was 10 years of age or younger; and (3) at the time of the act, the defendant was at least 18 years old. (CALCRIM No. 1127.) [¶] Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Citations.]” (People v. Mendoza (2015) 240 Cal.App.4th 72, 79.) This requires only slight penetration of the victim’s labia majora. (People v. Dunn (2012) 205 Cal.App.4th 1086, 1097; People v. Quintana (2001) 89 Cal.App.4th 1362, 1371 [labia majora form the external boundaries of the external female genitalia].)
During the trial, when the prosecutor asked L.L. whether defendant’s penis “ever went inside” her vagina during the incidents at Howard’s apartment, she said no. The prosecutor then asked whether she remembered her forensic interview. She said she did remember the interview. Asked whether she remembered telling the interviewer “that during these incidents, he would put his ‘thingy’ in [her],” L.L. answered: “As I got
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older, he did, yes.” She added that defendant “started doing it differently” when they moved to Foresthill. Asked what defendant did differently, L.L. answered: “He would try to put his penis inside of me.” She added that in Foresthill, defendant’s conduct “went from just rubbing to him actually trying to put his penis in [her].” In response to follow-up questioning, L.L. clarified that defendant did slightly penetrate her vagina during the incidents in Foresthill, “but he wouldn’t get it all the way in.” Later, during redirect examination, the prosecutor again asked L.L. about her forensic interview. After L.L. reviewed a portion of that interview, the prosecutor brought her attention back to the incidents that occurred when she lived in Antioch. The prosecutor asked whether she recalled telling the interviewer “that he did put his ‘thing’ in [her].” L.L. answered: “Yes.” She then clarified that by “ ‘thing’ ” she meant defendant’s penis.
Defendant points out that the forensic interview was not admitted into evidence and argues that L.L.’s acknowledgment that she told the interviewer that defendant put his penis in her when she lived in Antioch “is not enough” to support the challenged sexual intercourse conviction because her prior statement “that [he] put his penis ‘in’ her was not defined with reference to L.L.’s vagina or vaginal genitalia.” We disagree. Although a recording of the forensic interview was not admitted into evidence, L.L. testified that she made the prior statement. She did so without objection. Any assertion that the prior statement was improperly admitted is therefore forfeited. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 81-82 [failure to object or move to strike testimony forfeits the argument the testimony was inadmissible].) And although L.L. testified that defendant did not put his penis inside her vagina at Howard’s apartment, and that he slightly penetrated her vagina only after they moved to Foresthill, her prior statement during the forensic interview inconsistently reported that defendant did put his penis in her when she lived in Antioch. Prior inconsistent statements are admissible “ ‘to prove their substance.’ ” (People v. Barrett (2025) 17 Cal.5th 897, 973.) Based on the totality of L.L.’s testimony, a rational jury could have concluded that she meant her
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vagina, or at least the labia majora, when she told the forensic interviewer that defendant put his penis in her. It was for the jury, not this court, to decide whether to credit L.L.’s prior statement.
In his reply brief, defendant argues it requires guesswork to conclude that L.L.’s prior statement was inconsistent with her trial testimony. Defendant does not appear to be raising this argument as a separate claim of evidentiary error,1 but rather as an additional reason he believes there is insufficient evidence to support his conviction. However, substantial evidence review requires this court to “consider even improperly admitted evidence in determining whether there is sufficient evidence to support a trier of fact’s finding of guilt.” (In re Z.A. (2012) 207 Cal.App.4th 1401, 1425; see People v. Story (2009) 45 Cal.4th 1282, 1297-1298.)
In a footnote in his opening brief, defendant asserts that the prosecutor mischaracterized L.L.’s testimony during closing argument, but he does not raise prosecutorial misconduct as an issue under a separate heading or subheading, he does not support the accusation with reasoned argument or citation to relevant authority, and he did not object to the purported mischaracterization in the trial court. Any assertion of prosecutorial misconduct is therefore forfeited. (See People v. Centeno (2014) 60 Cal.4th 659, 674 [prosecutorial misconduct claim forfeited for failure to object]; Cal. Rules of Court, rule 8.204(a)(1)(B) [appellate briefs must state each point under a separate heading or subheading and support each point by argument and, if possible, citation to authority]; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4 [appellant
1 To the extent this is a new argument challenging the admissibility of the prior statement, arguments raised for the first time in a reply brief are forfeited without a showing of good cause. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10.) “Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; see Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765.)
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must present each point separately in its opening brief, showing the nature of the question to be presented and the point to be made; failure to do so may forfeit the argument]; Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074 [contentions not supported by reasoned argument and authority are forfeited].)
II
Defendant also claims the trial court committed instructional error with respect to all but one of the sex offenses committed against L.L. (counts 1 through 11) by giving the standard unanimity instruction, CALCRIM No. 3500. Specifically, he argues that because those counts were supported by generic testimony, the trial court should have instructed the jury on unanimity using CALCRIM No. 3501, which he contends is the unanimity instruction to be used in sexual abuse cases. Acknowledging that any such error is ordinarily subject to harmless error review, he nevertheless asserts that giving the standard unanimity instruction in this case, in combination with CALCRIM Nos. 1191A and 1191B, resulted in structural error.
Defendant did not object to any of the referenced instructions below. His failure to do so “forfeits the issue on appeal unless the error affects [his] substantial rights.” (People v. Anderson (2007) 152 Cal.App.4th 919, 927; People v. Burton (2018) 29 Cal.App.5th 917, 923.) Because the asserted structural error, if established, would necessarily affect defendant’s substantial rights, and because defendant references an alternative ineffective assistance of counsel argument, we will address his contention on the merits.
“Whether or not the trial court should have given a ‘particular instruction in any particular case entails the resolution of a mixed question of law and fact,’ which is ‘predominantly legal.’ [Citation.]” (People v. Hernandez (2013) 217 Cal.App.4th 559, 568 (Hernandez).) Our review is therefore de novo. (Ibid.)
“A unanimity instruction is given to thwart the possibility that jurors convict a defendant based on different instances of conduct. The giving of [such an instruction]
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‘ “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.” ’ [Citation.] Moreover, a unanimity instruction is ‘ “designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.” ’ [Citation.]” (Hernandez, supra, 217 Cal.App.4th at p. 569, fn. omitted.)
Here, the trial court instructed the jury on unanimity using CALCRIM No. 3500.
As given, the instruction stated: “So the defendant is charged with sexual intercourse and penetration on a child and lewd acts on a child in Counts 1 through 13. The People have presented evidence of more than one act to prove the defendant committed these offenses. [¶] 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 acts he committed.” The trial court also instructed the jury with CALCRIM No. 3515: “Also, each count charged in this case is a separate crime. And you must consider each count separately and return a separate verdict for each one.”
The unanimity instruction that defendant claims should have been given with respect to counts 1 through 11, CALCRIM No. 3501, would have instructed the jury as follows: “The defendant is charged with [sexual intercourse and penetration on a child and lewd acts on a child in Counts 1 through 11]. [¶] The People have presented evidence of more than one act to prove that the defendant committed [those offenses]. You must not find the defendant guilty [of the offenses] unless: [¶] 1. 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 [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].” (CALCRIM No. 3501.)
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The only difference between this instruction and CALCRIM No. 3500 is that CALCRIM No. 3501 provides the jury with a second option for reaching unanimity. (People v. Fernandez (2013) 216 Cal.App.4th 540, 556.) That second option allows the jury to find unanimity if “ ‘the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved the defendant committed at least the number of offenses charged].’ ” (Ibid.)
CALCRIM No. 3501 is appropriate where there are multiple charges supported by generic testimony such that “the jury may not be able to readily distinguish between the various acts,” but would be “capable of unanimously agreeing that they took place in the number and manner described.” (People v. Jones (1990) 51 Cal.3d 294, 321.) As the California Supreme Court has explained, the jury’s “difficulty in differentiating between the various acts should not preclude a conviction of the … counts charged, so long as there is no possibility of jury disagreement regarding the defendant’s commission of any of these acts.” (Ibid.) As defendant accurately observes, L.L. provided generic testimony that defendant touched her vagina with his fingers and penis multiple times each year over the span of several years. Thus, it would have been appropriate to instruct the jury on unanimity with CALCRIM No. 3501.
However, this does not necessarily mean that providing the jury with CALCRIM No. 3500 was error. In order to find error, we must be convinced to a reasonable degree of likelihood that the trial court’s instructions, considered as a whole, misled the jury. (People v. Carrington (2009) 47 Cal.4th 145, 192.) Here, CALCRIM No. 3500 directed the jurors that to convict defendant on any count they must agree that he committed at least one of the charged acts and they must also agree on which act he committed. The trial court also directed the jurors, using CALCRIM No. 3515, that each count is a separate crime and that they must consider each count separately. Viewed together, we conclude there is no reasonable likelihood that the jury was confused by the instructions and misapplied them in a way that allowed the jury to amalgamate the evidence and
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convict defendant of the charged crimes without unanimously finding that each offense had been proved beyond a reasonable doubt.
But even if it was error for the trial court to instruct the jury with CALCRIM No. 3500 rather than CALCRIM No. 3501, the error was harmless. “Although there is a split of authority on whether the Chapman[2] standard applies to the failure to give a unanimity instruction, we agree with the majority view that it does.” (People v. Jones (2024) 106 Cal.App.5th 1085, 1096.) Defendant does not argue that he meets this standard. Instead, he asserts that “a Chapman analysis is not required because, as will be argued, [CALCRIM No. 3500] in combination with [CALCRIM Nos. 1191A and 1191B] resulted in structural error.” As we will explain, defendant has not established structural error. And by failing to provide this court with a Chapman analysis, he necessarily cannot carry his burden on appeal of demonstrating reversible error. In any event, as already discussed, “CALCRIM No. 3501 provides an additional manner by which a jury may unanimously find a defendant guilty beyond that provided in CALCRIM No. 3500.” (People v. Vasquez (2017) 14 Cal.App.5th 1019, 1046.) Thus, the instruction does not benefit a defendant, but rather gives the jury an additional means of unanimously finding guilt beyond a reasonable doubt in cases where generic testimony might make it harder for the jury to unanimously agree under the standard instruction. Stated simply, a failure to instruct the jury with CALCRIM No. 3501 makes it harder for the prosecution to obtain a verdict in its favor, not the other way around.
Defendant has not persuaded us that structural error occurred. He relies on People v. Cruz (2016) 2 Cal.App.5th 1178 and People v. Nicolas (2017) 8 Cal.App.5th 1165 in making the argument, but such reliance is misplaced. Cruz involved instructional error regarding the jury’s assessment of other crimes evidence. That jury was instructed:
2 Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].
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“ ‘In determining whether defendant has been proved guilty of any sexual crime of which he is charged, you should consider all relevant evidence, including whether the defendant committed any other sexual crimes, whether charged or uncharged, about which evidence has been received.’ ” (Cruz, at pp. 1183-1184, italics added.) The jury was then instructed that it could infer that the defendant had a propensity to commit sexual offenses, and was therefore more likely to have committed the charged offenses, if it found “ ‘by a preponderance of the evidence’ ” that he committed “ ‘any such other sexual offense,’ ” i.e., whether charged or uncharged. (Id. at p. 1184.) The jury was further instructed that a finding that the defendant committed another sexual offense was “ ‘not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes … .’ ” (Ibid.) The appellate court held those instructions “presented the jury with a nearly impossible task of juggling competing standards of proof during different phases of its consideration of the same evidence.” (Id. at p. 1187.) Although it was proper to instruct the jury to use the preponderance standard when deciding whether or not the defendant committed other uncharged sexual offenses, the instruction should have “specif[ied] that a currently charged offense must be proved beyond a reasonable doubt before it can be used as propensity evidence in support of another currently charged offense.” (Id. at p. 1186.) A similar instructional error occurred in Nicolas. (Nicolas, at pp. 1181-1182.) In both cases, the error was held to have lowered the prosecution’s burden of proof, requiring reversal without a showing of prejudice. (Ibid.; Cruz, at p. 1187.)
After Cruz was decided, the standard instruction was split into CALCRIM No. 1191A, applicable to uncharged offenses, and CALCRIM No. 1191B, applicable to charged offenses. (See People v. Gonzales (2017) 16 Cal.App.5th 494, 496, fn. 1.) Here, the jury was given both instructions. Thus, the jury was specifically instructed that the prosecution had to prove “beyond a reasonable doubt that the defendant committed” a charged offense in order for the jury to “conclude from that evidence
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that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude the defendant was likely to commit and did commit the other sexual offenses charged in this case.” There was no instructional error in that regard. Defendant does not adequately explain how two properly given propensity instructions, CALCRIM Nos. 1191A and 1191B, “coupled with the standard unanimity instruction,” CALCRIM No. 3500, “impermissibly lowered the [prosecution’s] burden of proof,” resulting in structural error.
DISPOSITION
The judgment is affirmed.
/S/ MAURO, J.
We concur:
/S/ ROBIE, Acting P. J.
/S/ FEINBERG, J.