People v. Maddox CA2/7

INTRODUCTION

Defendant Michael Maddox was convicted by a jury on count 1 of oral copulation and on count 2 of sexual penetration of five-year old J. T., in violation of Penal Code section 288.7, subdivision (b).1 The trial court sentenced Maddox on each count to consecutive terms of 15 years to life, for an aggregate term of 30 years to life. On appeal, he challenges his conviction on count 2. We find it was error for the court not to give a unanimity instruction as to count 2 for sexual penetration in light of evidence of two separate criminal acts that the jury could have found constituted sexual penetration. While the prosecutor argued that Maddox committed sexual penetration by use of his finger, she also discussed evidence of Maddox’s saliva in J.’s vaginal area and, after deliberating for three hours, the jury inquired whether the tongue was a “penetrative device” for purpose of sexual penetration, which the court answered in the affirmative. In light of conflicting evidence as to whether the sexual penetration was caused by Maddox touching J.’s vaginal area with his finger or “licking” the vaginal area with his tongue, some jurors may have believed Maddox committed sexual…