Frazier
Filed
8/6/13 P. v. Frazier CA5
NOT
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
HENRY LEE FRAZIER, JR.,
Defendant and
Appellant.
F062053
(Tuolumne
Super. Ct. No. CRF31263)
APPEAL from
a judgment of the Superior Court of
County. Eleanor Provost, Judge.
Stephen M.
Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and Barton
Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
I.
INTRODUCTION
This case
arises from a construction dispute. A
homeowner testified that defendant did not competently complete portions of a
construction contract for which he was paid.
Defendant testified that the homeowner improperly used his contractor’s
license without his knowledge, refused to provide him with construction plans
and mischaracterized his role in the project.
Defendant also denied diverting any funds.
Defendant was convicted of felony
diversion of construction funds. (Count
I – Pen. Code,
title="">[1]
§ 484b.) After sentencing, the
Attorney General moved the trial court to revoke defendant’s contractor’s
license. (See Bus. & Prof.,
§§ 7090, 7106.) The trial court
granted the motion.
The
applicable version of section 484b distinguished between felony and misdemeanor
violations based on whether the defendant diverted funds “in excess of
$1,000.†Defendant contends that the court
was required to submit to the jury the issue of whether the diverted funds were
“in excess of $1,000,†and that its failure to do so was error. (See Apprendi
v. New Jersey (2000) 530 U.S. 466, 489 (Apprendi).) We agree, but find the error harmless beyond
a reasonable doubt. (See
Cal.4th 316, 324-326 [Chapman
The
evidence at trial suggested that defendant committed more than one discrete
violation of section 484b, yet only one count was charged. The trial court did not issue a unanimity
instruction, and defendant contends this was error. We agree.
We are unable to conclude that this error was harmless beyond a reasonable
doubt, and therefore reverse.
Defendant
also contends that the manner in which the court revoked his contractor’s
license violated his right to due process.
Because we reverse the conviction on which it was based, we reverse the
revocation order without reaching the due process contention.
II.
FACTS
The complaint in this case charged
defendant with one felony count of diversion of construction funds. (§ 484b.) The complaint did not indicate the amount of
funds defendant was alleged to have diverted.
At defendant’s trial, the following
evidence was adduced.
Joel
Johnson’s Testimony
Defendant’s
brother, Anthony Frazier, is an architect.
In 2007 or 2008, Anthony created plans for a bedroom expansion at the
home of Joel and Doris “Gail†Johnson.
The plans also included work on the front entryway of the home. Anthony recommended that Joel hire defendant
to perform work on the project.
Defendant’s
company, Bay West Development, was listed on the plans, as was Anthony
Frazier’s contractor’s license number.
Eventually, defendant came out to the Johnson home to look at the site. He returned some time later with a budget
sheet. Joel and defendant agreed on a
contract price of $60,000.00.
On July 16, 2008, Joel and
defendant signed a contract, which was admitted into evidence. The total amount the Johnsons owed under the
contract was $64,135. After listing the
total amount, the contract states:
“INSTALLMENTS AS FOLLOWS: 21,378.35
Eventually,
defendant started work on the project.
The yard was leveled, and trenches were dug for the foundation work.
Partway through the work, a number
of difficulties arose. First, a plan
change was required to accommodate tree roots in the mineral soil. No change was made to the contract with
respect to this plan change.
It was also discovered that the
plans did not reflect anticipated foundation work, requiring an additional
permit.
During the project, defendant
approached Joel about using Styrofoam concrete forms instead of insulated
concrete forms. Defendant indicated that
the Styrofoam forms would be more expensive, but would save on labor
costs. Joel told defendant to do
whatever he thought best. Styrofoam
forms were ultimately used and passed inspection by the county.
At one point, Joel and defendant
met to talk about additional payments for windows, engineering and redrafting
fees. Defendant told Joel that the first
installment payment had been spent and that he needed the second installment
payment “to get the concrete poured†and “order all the windows and
materials.†Joel believed that this
would be “straying†from the contract, because the second payment was not due
until the sheeting, framing and roof trusses were up.
Joel
ultimately wrote a check for $3,800 to “Baywest [sic] Development†for “architectural changes†and gave it to
defendant. Additionally, Joel provided
his credit card number so that defendant could purchase windows. The amount charged for the windows was
$3,500. No windows were ever delivered
to Joel’s house.
Eventually, foundation concrete was
poured for a single slab at the front entry of the house. After the pour, defendant did no further work
on the Johnson project.
“At some time†defendant offered to
finish the job on a “time and materials basis.â€
Joel understood this to mean that defendant would simply bill for hourly
wages and materials without regard to the contract. Joel made a complaint to the Contractors
State License Board (CSLB). He
eventually had another contractor perform the remaining work.
Testimony
of Donald Bruce, Jr.
Donald
Bruce, Jr. (Bruce) works for the CSLB.
Bruce was assigned to the Johnsons’ complaint against defendant. Bruce testified that defendant did hold valid
contractor’s licenses. Under the name
“Bay West Electric, Incorporated,†he held a general contractor’s license
(Class B) and a C-10 electrician license.
He testified that because Bay West Electric held the license, and not
Bay West Development, “that would force the … state to recognize Bay West
Development was not licensed at the time.â€
This was referred to as a contractor “working out of name style.â€
Bruce spoke
with defendant on April 1, 2009.
Defendant told Bruce that he was the contractor for the work at the
Johnson home. He admitted receiving
$42,000 from the Johnsons. He said that
he believed the contract could still be completed. Defendant told Bruce that he stopped the work
because he had not received revised plans and had no money to complete the
project.
Testimony of Michael Dewald
Michael
Dewald was a licensed contractor. H.C.C.
Surety Group hired Dewald to conduct an investigation at the Johnson site. Dewald investigated the site in July
2009. He determined that the following
had been done on the project: the
foundation had been installed; mud sills had been installed loosely, but were
not completely installed; and some of the drain pipe had been laid out but was
not completely installed. Dewald
testified that the work that had been done failed to meet industry standards in
a number of respects. There were
holddown brackets and seismic straps on site that had not been installed. Dewald did not see S.S.T.B. bolts, which must
be in place when the foundation is poured.
The mud sills were not properly aligned.
Dewald did not see flashing to separate the concrete from the wood
framing, and concrete had poured directly up against wood siding.
Dewald
determined that 18 percent of the entire project had been completed. Given the work that had been completed,
Dewald testified that of the $42,000 the Johnsons had paid to defendant, there
should have been “no less†than $30,000 left.
Testimony
of Donn Marinovich
Donn Marinovich was a licensed
general contractor who performed inspections for the CSLB. The CSLB asked Marinovich to inspect the
Johnson site. Marinovich inspected the
site twice, on May 7 and 14 of 2009.
During the May 7, 2009, inspection, Marinovich observed a “great dealâ€
of discrepancies between what the plans called for and what had been
built. For example, the plans called for
an “inverted T, poured-in-place foundation,†but instead an insulated concrete
foundation had been used. Wood remained
beneath the forms, incorrect washers were used, and seismic hold downs on site
were not installed. Dewald also found
wood forms embedded in the concrete, which can promote termite infestation and
dry rot. To fix this particular issue,
the wood forms would need to be torn out.
The CSLB
asked Marinovich to value the work that had been performed on the Johnson
project. Marinovich valued the work that
had been done at $4,408.
Testimony
of Eileen Hoover
Eileen
Hoover was a general manager for Calaveras Lumber since 2002. On November 8, 2007, defendant opened an
account at Calaveras Lumber under the name, “Bay West Electric.†The only project associated with this account
was the Johnson project. The items
purchased through credit on the account included: rebar, levels, chalking tape, framing,
Douglas Fir studs (2x4x8 and 2x4x10), nuts, and bolts. When asked whether these materials were
“basically foundation and framing type†materials, she responded,
“Correct.†The outstanding principal on
the account was $2,685.97. A single
payment was made in June 2008 of $262.
The account was credited $396.69
for materials Calaveras Lumber picked up from the Johnson site on July 6, 2009,
including 18 pieces of rebar, foundation bolts, soap washers, hex bolts, and
miscellaneous foundation materials.
Defendant’s account was placed on hold in late 2008 or early 2009 due to
lack of payment.
Testimony
of Defendant Henry Lee Frazier, Jr.
Defendant
received a C-10 electrician’s license in 1984 and a class B general
contractor’s license in 2005. He
was never “a part of†Bay West Development or Bay West Electric Company. Defendant hired Anthony as an independent
contractor.
Defendant
testified that he was initially only involved in “designing and drafting
services†for the Johnson project. After
the design and drafting services were completed on December 31, 2007, defendant
did not hear from the Johnsons again until July 16, 2008.
On December 31, 2007, the Johnsons
attempted to obtain a permit for the project.
Neither Anthony nor Joel spoke to defendant about the filing of the
permit. Defendant did not give Anthony
or the Johnsons permission to use Bay West Electric, Incorporated’s
contractor’s license number on the permit.
A second
permit, dated June 27, 2008, was issued with respect to the project. Defendant was not made aware of this permit
either, until after the foundation was completed. Bay West Electric’s contractor’s license
number was used on the second permit.
Defendant did not give Anthony or Joel permission to file the second permit.
In early
July 2008, one of the Johnsons called defendant, and asked that defendant come
to their home and provide an estimate on the plans Bay West Development had
previously created. Defendant met with
Anthony, Joel and Gail at the Johnson home.
Defendant said that he could not do the job as a contractor because he
lived too far away. The Johnsons asked
whether defendant could be the project manager of the job and perform the
electrical work involved. Defendant
decided that he would become project manager and do the electrical work. Defendant formulated a “target amount†of
$64,000 for the job. He arrived at this
figure based on the first set of Anthony’s plans, which called for a “the
extension of two rooms, the bump-out of [] two windows up on the second level
and a relocation of the laundry [room].â€
Defendant
indicated that a man named Walter Hill submitted an estimate of $7,450 to do
the foundation work on the job. Joel
hired Hill to do the foundation work.
Defendant wrote the check to pay Hill, which was drawn on funds from the
first installment payment Johnson had made to defendant.
Hill
recommended using an “isolated block system†for the foundation. Installing this system requires a special
certification, which Hill had. Defendant
testified that a labor-intensive excavation was required for this type of foundation. In such a project, most of the labor is at
the front-end.
Defendant
also testified to significant problems that arose during the project. A subsurface tree trunk was discovered when
it was hit with a back hoe. Defendant
testified that the tree trunk “plagued†the crew throughout the whole job. For three or four days, they attempted to
remove the tree trunk. They could not
continue with the work on the project until the trunk was removed. Defendant testified that he was not working
as the contractor for the project, but rather as the project manager on behalf
of Joel. If defendant had been the
contractor, he would have stopped the job upon discovery of the tree trunk,
written a change order, and made a new contract.
Eventually,
defendant began to run low on money due to the amount of labor required. He testified that the first installment
Johnson had paid him was used in obtaining the isolated block system for the
foundation. Defendant had to travel to
Nevada to pick up materials related to the isolated block system. Additionally, the labor costs associated with
the excavation were substantial.
Defendant
requested that Johnson provide the second installment payment. Defendant testified as to his understanding
of the conditions for the second installment payment: “before the second payment is given, that the
frame of the roof must be on the building. That was our goal.†Defendant admitted that the condition was not
satisfied before he received the second installment payment.
Eventually,
Joel fired Hill. When this occurred,
defendant was unsure how to proceed because Hill had possessed the
certification required to install the isolated block system. Hill told defendant about another certified
installer, Malcolm Millright. Defendant
called Millright, who offered guidance to defendant on how the system was
installed, free of charge. Once the
isolated block system was installed, it required special braces to hold the
blocks into position during the concrete pour.
Millright charged $20 per unit to rent the braces.
On
September 24, 2008, Joel indicated to defendant “for the very first time†that
he wanted to extend the foundation 113 feet.
This extension would require additional excavation which would need to
be performed by hand. It took four men
two or three weeks to perform the task with picks and shovels. Defendant told Joel that he needed to
resubmit plans to the city to reflect the change.
Millright
indicated that defendant needed to retrench the project again. The trenches needed to be two feet deeper
than they were. The retrenching took a
couple of weeks. Next, they vacuumed to
remove loose dirt in preparation for the pouring of concrete. The vacuuming took approximately one week.
Defendant
continued to ask for revised plans. They
were never given to him.
Eventually,
a government inspector came to the site and said, “[W]e’re ready for
pour.†At that point, “everybody†became
anxious to have the concrete poured.
Defendant said that he could not pour the concrete until he received the
revised plans for which he had been asking.
Without them, he did not know where the “hold downs†were to be
installed. Joel insisted that the
concrete be poured. So, defendant had
the concrete poured.
After the
concrete cured, defendant continued to ask Joel and Anthony for the revised
plans. Defendant testified that they “purposefully†kept the plans from
him. Work on the project ceased because
it seemed to defendant that there was nothing more he could do.
Accounting
Defendant created a Wells Fargo
bank account for Bay West Development in May of 2005, when the company was
created. On July 16, 2008, a check from
the Johnsons in the amount of $21,378.35 was deposited into the Bay West
Development account. On August 20, 2008,
another $21,378.35 deposit was made to the account. The Johnsons wrote a check to defendant for
that same amount dated August 20, 2008.
Defendant deposited a $3,800 check from Joel on September 26, 2008.
In July 2008, defendant made a
$941.58 payment from the account for the isolated block materials for the
foundation. Defendant testified that
this was apparently the only debit on the account that related to the Johnson
project. A $1,000 check dated July 23,
2008, and drawn on the Bay West Development account was deposited into a joint
bank account defendant maintained with his wife. Checks in the amounts of $700, $1,000,
$3,000, $1,000, and $2,400 drawn on the Bay West Development account and dated
July 28, August 6, August 19, August 5 and September 27 of 2008, respectively,
were also deposited into this joint account.
Defendant later testified that these were equity draws. These amounts were in addition to the $1,650
per week payroll draws defendant received for the project.
Between July 17, 2008, and
September 30, 2008, defendant transferred $29,717.16 from the Bay West
Development account to his other business account for Bay West Electric,
Incorporated. Defendant testified that
this entire amount was used for payroll payments for labor on the Johnson
project. The last payment from the Bay
West Development account related to expenses, costs or materials for the
Johnson project was made on September 25, 2008.
Defendant also testified that he
was unable to pay Calaveras Lumber because Joel “took†$3,500 out of defendant’s
account by reversing a charge.
Rebuttal
Testimony of Joel Johnson
Joel
testified that defendant was the contractor on the job. Joel testified that he did not hire or fire
Hills. Joel testified that it was always
his intention for the foundation to go two feet beyond what the initial plans
indicated. He believed Anthony had made
an error in failing to reflect it in the first plan.
The
following exchange between defense counsel and Johnson took place on rebuttal:
“[Defense
counsel]: Would you agree that the
additional 113 square feet to the project was going to require some additional
work and maybe some additional cost?
“[Joel
Johnson]: Well, I assume that any change
from the – what we thought before would be – yeah, would be a change order cost
for sure.â€
Post Evidence Phase
During
closing argument, the prosecutor argued two bases for finding defendant guilty:
“[T]he second
element [of the offense] has two parts.
The defendant willfully failed to apply such money for those
purposes. Okay. He didn’t apply the money to what he was
supposed to do. And that can be shown one of two ways.
It’s an either/or. [¶] The first one is failing to complete
improvements for which the funds were provided, or the second way is willfully
failing to pay for services, labor, materials or equipment incident to the
construction. So, if he does one of those two things, and we’ve proved that beyond a
reasonable doubt, then the defendant’s guilty.
Well, we’ve proven the second element.
[¶]…[¶] …Okay. Number two, did he willfully fail to apply
such money for those purposes by either failing to commit to complete the
improvements or not – failing to pay for the services, labor and
materials? Well, actually both of those.
[¶] In this particular case, he didn’t finish the job that he was paid to
do, and he didn’t pay for everything that he even got for the job from
Calaveras Lumber.†(Italics added.)
The trial court did not issue a
unanimity instruction to the jury. The
jury convicted defendant, “as charged.â€
The trial court granted probation,
but ordered defendant to serve 60 days in jail with a one-day credit for time
served. The court ordered defendant to
pay restitution in the amount of $28,027.42 to Joel and Gail Johnson. The court also ordered defendant to pay a
restitution fine of $1,000 (§ 1202.4, subd. (b).) An additional restitution fine of $1,000 was
assessed and suspended pending termination of probation. (§ 1202.44.) The court further fined defendant $1,070.
Postsentencing
Hearing
The Attorney General filed a motion
with the trial court seeking to revoke defendant’s contractor’s license
pursuant to section 23 and Business and Professions Code section 7106. Defendant’s attorney filed an opposition to the
motion.
Defendant’s attorney did not appear
at the hearing. The court asked
defendant whether his attorney was coming, and defendant replied, “He’s not
here.†Defendant did not know whether
his attorney made arrangements to appear telephonically.
Deputy Attorney General Jeff
Phillips appeared on behalf of the Attorney General.
There was a discussion between the
court, defendant and Phillips regarding service of defendant’s opposition. Phillips had not received the opposition, but
that may have been due to Phillips’s absence from his office. The court conveyed the essence of defendant’s
opposition, in which he argued the superior court’s revocation of his license
would violate his “constitutional right to a license revocation hearing.†The court asked Phillips whether there was
statutory authority for the superior court to revoke the license. Phillips responded by citing section 23.
regarding the burden of proof on a license revocation, in response to the
court’s questions.
At one point during this discussion,
defendant tried to speak. The court
said: “Mr. Frazier, you’re not really in
a position to represent yourself. You
have a lawyer. He has filed moving
papers. I’ve read them. Or opposition papers. I’ve read them. And they’re – a motion like this doesn’t
require testimony, it doesn’t take testimony, it doesn’t anticipate
testimony.†Later in the hearing,
defendant did speak at some length about the anticipated hearing before the
CLSB.
The court granted the motion,
stating to defendant, “You were convicted by a jury on a burden of proof of
beyond a reasonable doubt that you’ve diverted construction funds, and I am
going to grant this motion of the attorney general.†At the end of the hearing, after the court
made its ruling, the defendant stated, “I’m representing myself.†The court responded, “No, you’re not. You have a lawyer.â€
ANALYSIS
III.
Defendant claims that
constitutionally invalid sentence. The
Attorney General does not contend that there was no Apprendi error. Rather, she
argues that any such error was waived and was harmless. Defendant contends that the error was not
harmless. He further contends that if
waiver applies, then he received ineffective assistance of counsel.
We conclude that the
reasonable doubt. We therefore find that
defense counsel’s failure to object to such error was not reversible
ineffective assistance of counsel.
THE ISSUE OF WHETHER DEFENDANT DIVERTED FUNDS “IN EXCESS OF $1,000†TO THE JURY
“Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.…†(
Under this rule, the “statutory maximum†is defined as the maximum
sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.
(Blakely v. Washington (2004)
542 U.S. 296, 303.)
The applicable version of section
484b, stated:
“Any
person who receives money for the purpose of obtaining or paying for services,
labor, materials or equipment and willfully fails to apply such money for such
purpose by either willfully failing to complete the improvements for which
funds were provided or willfully failing to pay for services, labor, materials
or equipment provided incident to such construction, and wrongfully diverts the
funds to a use other than that for which the funds were received, shall be
guilty of a public offense and shall be punishable by a fine not exceeding ten
thousand dollars ($10,000), or by imprisonment in the state prison, or in a
county jail not exceeding one year, or by both that fine and that imprisonment
thousand dollars ($1,000). If the amount
diverted is less than one thousand dollars ($1,000), the person shall be guilty
of a misdemeanor.†(Italics added.)
That the amount of funds diverted was
$1,000 or more is an element of felony diversion, but not misdemeanor
diversion. (§ 484b.) Defendant was charged with
him “as charged.†But, the court did not
instruct the jury that they needed to make any finding regarding the amount of
funds diverted, and the jury’s verdict reflects no such finding. Because the possibility of both imprisonment
and a fine was only available if defendant diverted an amount “in excess of one
thousand dollars,†(§ 484b), the issue needed to be submitted to a
jury. (Cf. Apprendi, supra, 530 U.S.
at p. 489.) The failure to do so
was error. (Cf. ibid.)
We consider whether an
standard set forth in Chapman,
v. Davis (2005) 36 Cal.4th 510, 564; People
v. Sengpadychith, supra, 26
Cal.4th at p. 327.) That is, we
determine whether the prosecution has proved beyond a reasonable doubt that the
error did not contribute to the jury’s verdict.
(Sengpadychith,
reasonable doubt that the omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have been the same
absent the error, the erroneous instruction is properly found to be
harmless.†(Neder v. U.S. (1999) 527 U.S. 1, 17.)
Defendant argues that he did
contest the amount of funds diverted by “presenting evidence that he had used
labor and materials,…†(Italics
added.) But this evidence contested the
were not impacted by the Apprendi error. That is, the evidence cited by defendant
contested whether he diverted funds at all, not whether the diverted funds were
in excess of $1,000.
Our harmless error analysis is
element-specific. “[W]hen jury
instructions completely omit an element
of a crime, and therefore deprive the jury of the opportunity to make a finding
on that element, a conviction may be
upheld under Chapman where there is
no ‘record ... evidence that could rationally lead to a contrary finding’
(People v. Davis,
italics added.) Here, that element was whether the diverted funds exceeded
$1,000, not whether defendant diverted any funds at all.
The jury necessarily concluded that
defendant diverted at least some
funds, and this determination was not infected by Apprendi error. To establish
prejudice from the Apprendi error
itself, there would need to have been evidence that could rationally lead to a
contrary finding on the element affected
by the Apprendi error (i.e., whether the amount of diverted funds exceeded
$1,000 or not). In other words, defendant
needed to cite evidence that the amount of funds diverted, if any, was less
than $1,000. (People v. Davis, supra,
36 Cal.4th at p. 564 [“when jury instructions completely omit an element … a
conviction may be upheld … where there is no … ‘evidence that could rationally
lead to a contrary finding with respect
to that element.…’ †(Italics
added.)]) He cites no such evidence, and
we find none in the record.
Defendant implicitly acknowledges
the lack of the requisite type of evidence by arguing that had he “known that
the precise amount of money diverted was an issue (as opposed to whether any
money at all was diverted), then he could
have presented expert testimony to counter the testimony of prosecution
witnesses…, showing that if he diverted any money at all, then the sum diverted
was not in excess of $1,000.†(Italics
added.) Defendant does not indicate
the amount of money diverted “was an issue.â€
But, the complaint expressly
charged defendant with a felony
violation of section 484b. The only
distinction between felony and misdemeanor violations of then-section 484b was
the amount of funds diverted.
(§ 484b.) Thus the inclusion
of the word “felony†in the complaint necessarily conveyed the prosecution’s
allegation that the amount of funds diverted was “in excess of $1,000.†(See also People
v. Chait (1945) 69 Cal.App.2d 503, 512-513 [rejecting claim that indictment
was fatally flawed by failing to include value of property taken, which was
necessary to determine whether offense was a felony or misdemeanor].) Even if the complaint had been ambiguous,
defendant waived the objection by failing to demur to the accusatory
pleading. (People v. Heim (1961) 196 Cal.App.2d 1, 5.)
Because we have found the error
harmless under Chapman,
counsel’s failure to object to that constitutional error did not represent
ineffective assistance of counsel – for the simple reason the lawyer’s mistake
could not have affected the outcome.†(
1000, 1012.)
IV.
UNANIMITY
INSTRUCTION
UNANIMITY INSTRUCTION
When evidence adduced at trial
suggests the defendant committed more than one distinct crime, the prosecution
must elect among the crimes or the court must require the jury to agree on the
same criminal conduct. (People
v. Benavides (2005) 35 Cal.4th 69, 101.)
The parties agree that the trial court should have given a unanimity
instruction here. At closing, the
prosecutor argued that defendant committed multiple acts constituting
violations of section 484b. Because
there was no election by the prosecutor, the trial court was indeed required to
give a unanimity instruction sua sponte.
The failure to do so was error.
Next, we must determine whether
that error was harmless. The failure to
give a unanimity instruction violates a criminal defendant’s constitutional
right to a unanimous jury. (Cal. Const.,
art. 1, § 16; People v. Castaneda (1997)
55 Cal.App.4th 1067, 1071.) It also
violates the right to due process under the federal constitution. (People
v. Wolfe (2003) 114 Cal.App.4th 177, 186-188.) Therefore, the failure to give a unanimity
instruction is reviewed under the stringent Chapman
“harmless beyond a reasonable doubt†standard. (People
v. Milosavljevic (2010) 183 Cal.App.4th 640, 647; People v. Curry (2007) 158 Cal.App.4th 766, 783;
1529, 1536 [applying Chapman standard];
People v. Metheney (1984) 154
Cal.App.3d 555, 563-565, fn. 5. Cf.,
beyond a reasonable doubt†test in dicta, without expressly deciding issue].
But, see People v. Vargas (2001) 91
Cal.App.4th 506, 562 [rejecting application of Chapman test in favor of Watson
The People argue the error was
harmless, citing People v. Thompson (1995)
36 Cal.App.4th 843, 853. In
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.†(Id.
at p. 853.) This is not such a
case, as explained, post.
“The important question is whether
there was anything in the record by way of evidence or argument to support
discriminating between the two incidents such that the jury could find that
appellant committed one … but not the other.â€
(People v. Brown (1996) 42
Cal.App.4th 1493, 1502.) Here, the
record does provide a rational basis, by way of argument or evidence, for the
jury to distinguish between defendant’s various acts.
The People argue that defendant did
not offer differing defenses. She argues
that appellant’s defense to all of the acts “was that he ran out of funds to
complete the project, the Johnsons paid him no additional funds, and the
Johnsons reversed a payment to his account, preventing him from paying
Calaveras Lumber for materials and from finishing the project.†But the People are not describing a unitary
defense, but rather several defenses that go to different elements of the
crime. A closer analysis of the record
shows that some of these defenses were specific to the particular acts cited by
the prosecutor at closing.
For example, some jurors may have
found defendant guilty for his failure to pay Calaveras Lumber.
$3,500 credit card charge, effectively removing funds from defendant’s
account. This, according to defendant,
prevented him from being able to pay Calaveras Lumber as he intended. In legal terms, the defense was that the
element of “willfully failing to pay
for services, labor … or equipment provided incident to such construction†was
not satisfied. (§ 484b, italics
added. See also § 7.)
Other jurors may have found
defendant guilty because he failed to complete improvements for which the
Johnsons had paid him.
name="_ftnref8" title="">[8] Defendant testified that he eventually
offered to do the work for the Johnsons free of charge. But, the Johnsons did not trust defendant by
that point and rejected his offer. Thus,
defendant’s defense was that he did not “willfully
fail[] to complete the improvements†for which he had been paid. (§ 484b, italics added.) See also § 7.)
We do note that there was
considerable evidence contradicting these defenses. But, we may not consider the weight of the
prosecution’s evidence on harmless error review of an instructional omission
that lowers the prosecution’s burden of proof.
(See People v. Aranda (2012)
55 Cal.4th 342, 368.) Failing to issue a
unanimity instruction does precisely that.
(People v. Milosavljevic,
1537, 1545.)
“ ‘[W]e cannot affirm a
non-unanimous verdict simply because the evidence is so overwhelming that the
jury surely would have been unanimous had it been properly instructed on
unanimity.’ †(U.S. v. Russell (3d. Cir. 1998) 134 F.3d 171, 181,
Because there were different
defenses offered to the various acts, there is a rational basis for the jury to
distinguish between them. (Cf.
rational basis for distinguishing acts].)
And because there was a rational basis for distinguishing the acts, we
cannot hypothesize whether the jury credited those distinctions or collectively
agreed on the act constituting the crime.
(See U.S. v. Beros (3rd Cir.
1987) 833 F.2d 455, 461.) “[W]e cannot
say beyond a reasonable doubt that each juror agreed on the particular criminal
act that formed the basis for the verdict.â€
(People v. Melhado,
V.
LICENSE MUST BE REVERSED ALONG WITH THE CONVICTION
The trial court’s revocation of
defendant’s contractor’s license was based on his conviction. (See Bus. & Prof. Code, §§ 7090,
7123.) Because we reverse the
conviction, we also reverse the order revoking defendant’s contractor’s license
in its entirety.
DISPOSITION
The judgment and the order revoking
defendant’s license are reversed in their entirety. The matter is remanded for possible retrial,
and possible rehearing under Business and Professions Code section 7106.
_____________________
Poochigian, J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Gomes, J.
All further statutory references are to the Penal Code unless otherwise stated.
Chapman v. California (1967) 386 U.S.
18 (Chapman)
