P. v. Johnson

Filed 10/29/07 P. v. Johnson CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

ANDRE JOHNSON,

Defendant and Appellant.

2d Crim. No. B194270

(Super. Ct. No. BA279045)

(Los Angeles County)

Andre Johnson appeals from the judgment entered following his conviction by a jury of inflicting corporal injury upon the mother of his child (Pen. Code, 273.5, subd. (a))^{^[1]}and of misdemeanor child endangerment. ( 273a, subd. (b).) Appellant admitted an allegation that, within the previous seven years, he had suffered a prior conviction for violating section 273.5, subdivision (a). ( 273, subd. (e)(1).) The imposition of sentence was suspended, and he was placed on probation. One of the conditions of probation was that he serve 365 days in county jail.

Appellant contends that the trial court erroneously failed to give sua sponte a unanimity instruction requiring the jury to agree on one act as the basis for the misdemeanor child endangerment conviction. In addition, appellant contends that the trial court erroneously instructed the jury pursuant to CALJIC Nos. 2.50.02 and 2.50.1. We affirm.

Facts

On December 7, 2004, appellant punched his girlfriend, L.B., numerous times in the face. He also shoved her into a computer desk and a window.

L.B.'s 10-year-old son, S.R., witnessed the assault. "[I]n an attempt to stop [appellant] from attacking his mother," S.R. "went behind [appellant] in an attempt to hit him." Appellant "threw his elbow back into [S.]'s mouth." The blow caused "visible injuries" to S.R.'s lip area.

Unanimity Instruction

"Where the jury receives evidence of more than one factual basis for a conviction, the prosecution must select one act to prove the offense, or the court must instruct the jury that it must unanimously agree on one particular act as the offense. [Citations.]" (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.) Appellant contends that his conviction of misdemeanor child endangerment could have been based on either of two separate acts. One act occurred when appellant elbowed S.R. in the mouth. The other act occurred when appellant inflicted mental suffering on S.R. by assaulting his mother in his presence. Because there were two separate acts, appellant argues that the trial court was required to give a unanimity instruction sua sponte.

We disagree. "The unanimity instruction is not required where the criminal acts are so closely connected that they form a single transaction or where the offense itself consists of a continuous course of conduct. [Citation.]" (People v. Rae (2002) 102 Cal.App.4th 116, 122.) Here the acts in question were so closely connected in time and place that they constituted a single transaction. At the same time that appellant was assaulting L.B., he elbowed S.R. in the mouth. L.B. testified that S.R. "got hit in the mouth for trying to pull [appellant] off of me."

CALJIC Nos. 2.50.02 and 2.50.1

Appellant contends that the trial court erroneously instructed the jury pursuant to CALJIC Nos. 2.50.02 and 2.50.1. CALJIC No. 2.50.02 concerns evidence of prior offenses involving domestic violence. CALJIC No. 2.50.1 provides that such prior offenses must be proved by a preponderance of the evidence. Appellant argues that these instructions together "permitted the jury to find appellant guilty of the charged domestic violence offense based upon facts that had been proved merely on a preponderance of the evidence standard." Therefore, appellant maintains, the instructions violated his constitutional right to a jury determination of guilt beyond a reasonable doubt.

Our Supreme Court rejected a similar argument with respect to CALJIC No. 2.50.01 in People v. Reliford (2003) 29 Cal.4th 1007. CALJIC No. 2.50.01 is virtually identical to CALJIC No. 2.50.02, except that it concerns evidence of prior sexual offenses instead of prior offenses involving domestic violence. Based on Reliford, in People v. Pescador (2004) 119 Cal.App.4th 252, 261-262, the appellate court upheld the constitutionality of CALJIC No. 2.50.02. The Pescador court concluded: "For the purposes of evaluating the constitutional validity of the instructions, there is no material difference between CALJIC No. 2.50.01 and CALJIC No. 2.50.02. [Citation.]" (Id., at p. 261.)

We find Pescador's analysis persuasive. Appellant argues that our Supreme Court's reasoning in Reliford "was flawed." But pursuant to the doctrine of stare decisis, we must follow the holding of Reliford. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

In any event, appellant's argument is without merit because the giving of CALJIC No. 2.50.1 assured that the jury would not find appellant guilty of the domestic violence offense based on facts proved merely by a preponderance of the evidence. Pursuant to CALJIC No. 2.50.1, the jury was instructed as follows: "If you find by a preponderance of the evidence that the other crime or crimes were committed by the defendant, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime." Moreover, pursuant to CALJIC No. 2.50.02, the jury was instructed that, if they "find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offenses."

Disposition

The judgment is affirmed.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Craig E. Veals, Judge

Superior Court County of Los Angeles

______________________________

James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Susan S. Kim, Deputy Attorney General, for Plaintiff and Respondent.

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^{^[1]}All statutory references are to the Penal Code.

Description	Andre Johnson appeals from the judgment entered following his conviction by a jury of inflicting corporal injury upon the mother of his child (Pen. Code, 273.5, subd. (a))[1]and of misdemeanor child endangerment. ( 273a, subd. (b).) Appellant admitted an allegation that, within the previous seven years, he had suffered a prior conviction for violating section 273.5, subdivision (a). ( 273, subd. (e)(1).) The imposition of sentence was suspended, and he was placed on probation. One of the conditions of probation was that he serve 365 days in county jail. Appellant contends that the trial court erroneously failed to give sua sponte a unanimity instruction requiring the jury to agree on one act as the basis for the misdemeanor child endangerment conviction. In addition, appellant contends that the trial court erroneously instructed the jury pursuant to CALJIC Nos. 2.50.02 and 2.50.1. Court affirm.
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