P. v. Everett

Filed 10/26/06 P. v. Everett CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

On April 8, 2005, the Solano County District Attorney filed an information charging appellant Alfred Randell Everett in counts 1 and 3 with making criminal threats (Pen. Code, § 422) and in count 2 with misdemeanor battery (Pen. Code, § 243, subd. (e)(1)). The information also alleged a prior felony conviction. On April 19, 2005, a jury found appellant not guilty of count 1, but guilty of counts 2 and 3. Appellant waived jury trial on the prior conviction allegation, and the court found it to be true. On June 30, 2005, the court denied probation and sentenced appellant to the upper term of three years on count 3, and imposed a consecutive term of one year for the prior felony conviction. Appellant appeals only as to count 3, contending that the court erred when it failed to give an instruction on jury unanimity sua sponte and did not require the prosecutor to elect which facts it intended to rely on in proving a violation of section 422. We agree and reverse.

Factual Background

Marsha Meadors and appellant had been in a relationship from September 2003 through April 2004. In October 2004, Meadors told appellant that the relationship was over.

On December 23, 2004, Meadors was employed at a Taco Bell in Vallejo. Appellant approached her as she arrived at work on her bike, and asked why she was not returning his calls. Meadors responded that she no longer wanted to see appellant and had begun seeing someone else. Meadors testified that appellant then hit her eight or nine times with a closed fist and, as he ran away, said “Bitch, I’ll kill you”. She called the police and was taken to the hospital with minor injuries. This incident was charged in counts 1 and 2.

At 11:00 p.m. on January 22, 2005, upon arriving for work, Meadors encountered appellant, who demanded to speak with her. She refused and entered the Taco Bell. Appellant then called Meadors numerous times on the telephone, stating that he wanted the property he had left with her during their relationship. Meadors testified that shortly after 11:00 p.m. appellant began threatening her through the customer speaker in the drive-through lane. These threats were similar to the threats he had made on December 23. At that point, Meadors called the police and told them she wanted appellant arrested for trespassing. She also told the officers she did not want him to come back. The police officers who responded to her call contacted appellant. The record does not indicate the precise actions taken by the police or what appellant did immediately after that initial contact.

Approximately 90 minutes later, at 12:45 a.m., the police were contacted again by Meadors, who stated appellant was harassing her. When the police arrived on the scene, they asked Meadors if she wanted appellant arrested. She stated that she did. The officers arrested appellant, and as he was taken to the patrol car he yelled, “I’ll fuck you up for this shit” and made other threatening statements prior, during and after he was handcuffed. Appellant was then taken to the police station. The threats alleged in count 3 related to statements made by appellant on January 22, 2005.

Discussion

I. A Unanimity Instruction Was Required

When evidence is presented to a jury that tends to prove more than one act that may constitute the crime charged, the jury must be given a unanimity instruction, or the prosecutor must elect the act on which to rely. (People v. Napoles (2002) 104 Cal.App.4th 108, 114.) However, there is an exception to this rule when the multiple acts are properly viewed as continuous conduct of the defendant. (Id. at p. 115.) This “continuous course of conduct“ exception may be invoked in two situations: when the two offenses are so closely connected in time that they form part of one transaction, and when an examination of the statutory language of the charged crime reveals that the Legislature intended to punish an entire course of wrongful conduct. (Ibid.) Neither situation applies here.

As to proximity in time, People v. Melhado (1998) 60 Cal.App.4th 1529 is instructive. In Melhado the court considered evidence of multiple criminal threats, made toward the same victim, by the same perpetrator. The threats were made less than two hours apart, and between the occurrences, the perpetrator left the premises before returning to make further threats. The Melhado court found the threats to be separate incidents requiring an election by the prosecutor or a unanimity instruction. (Id. at pp. 1532-1533.) The factual similarities between this case and Melhado are salient. First, the threats in Melhado and here were separated by less than two hours. Further, though the record is not entirely clear, it appears that appellant left the premises after the initial encounter with the police at 11:15 p.m. and returned at 12:45 a.m. to make further threats.

Appellant was contacted by the police at around 11:15 p.m. in the parking lot of Taco Bell. Since the police were asked to respond to a person trespassing, it can reasonably be inferred that when the police contacted appellant he was directed to leave the premises. When the police were summoned back to the scene at 12:45 a.m., an officer testified that Meadors stated, he “was back in the drive through,” confirming that appellant had left the premises before returning. (Italics added.) As in Melhado, the facts show two distinct incidents where criminal threats were made, not a continuous course of conduct.

In addition, the language of Penal Code section 422 does not reflect the goal or effect of punishing a course of conduct; instead, the statute is intended to punish individual acts. (People v. Napoles, supra,104 Cal.App.4th at p. 115.) “The language of section 422 focuses on an individual act--a threat--although an effect (fear) is also required. The criminal action is denoted by a verb--’threaten’--which ordinarily refers to an act taken at a particular moment in time rather than as a continuous course. The outcome, instilling of fear in the victim, does not come within the statute unless it is produced by a specific means, the ‘unequivocal, unconditional, immediate, and specific‘ threat. Thus section 422 does not come within the continuous course of conduct exception.” (People v. Salvato (1991) 234 Cal.App.3d 872, 883, italics added.)

Accordingly, the separate threats made by appellant at approximately 11:15 p.m. and 12:45 a.m. are not subject to either branch of the continuous course of conduct exception.

II. The Failure to Instruct on Unanimity Was Prejudicial

There is an apparent split of authority among our intermediate appellate courts regarding the appropriate standard of harmless error for failure to instruct on juror unanimity. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188.) The state law standard, set out in People v. Watson (1956) 46 Cal.2d 818, 836, is supported by cases that conclude that the state constitution is the source of the unanimous verdict requirement. (People v. Vargas (2001) 91 Cal.App.4th 506, 562; People v. Patrick (1981) 126 Cal.App.3d 952, 967.) The federal standard set out in Chapman v. California (1967) 386 U.S. 18 permits an appellate court to affirm only if the error is harmless beyond a reasonable doubt. Cases that have concluded that Chapman governs have determined that a nonunanimous verdict denies due process, violating the federal constitution, by effectively lowering the prosecution’s burden of proof. (People v. Melhado, supra, 60 Cal.App.4th at p. 1536; People v. Deletto (1983) 147 Cal.App.3d 458, 472.) Wolfe agreed with this latter group of decisions and so do we. (Wolfe, at pp. 187-188.)

“Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. [Citation.] Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.]” (People v. Thompson (1995) 36 Cal.App.4th 843, 853.) Our case, however, is different. By returning different verdicts as to counts 1 and 2, which charged different offenses for appellant’s misconduct on December 23, 2004, the jury clearly signaled that it was not entirely satisfied with the victim’s testimony. As to count 3, some jurors may have believed her testimony as to the earlier incident, while others believed the officers’ testimony regarding the later incident. We cannot accept the implicit argument in respondent’s brief that any error was harmless because all jurors must have accepted the officers’ testimony as true. And, so, we cannot say, beyond a reasonable doubt, that the error was harmless.

Disposition

The conviction on count 3 is reversed and the matter remanded for further proceedings.

SIMONS, Acting P.J.

We concur.

GEMELLO, J.

BRUINIERS, J.^*

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^* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.