Filed 7/25/17 P. v. Keosodsay 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

KHAMPHANH KEOSODSAY,

Defendant and Appellant.
C080771

(Super. Ct. No. 15F00215)





Defendant Khamphanh Keosodsay was charged with obstructing a peace officer by force or violence (Pen. Code, § 69; unless otherwise stated, statutory sections that follow are to the Penal Code), attempting to take a firearm from a peace officer (§ 148, subd. (d)), and providing false identification to a peace officer, a misdemeanor (§ 148.9, subd. (a)). A jury convicted defendant on the false identification count and acquitted him of the remaining counts. The trial court found defendant was in violation of his probation in another case based on his conduct in this case, and sentenced him to 180 days in county jail with 180 days of credit for time served.
On appeal, defendant contends (1) the trial court’s response to a question from the jury deprived him of a fair trial, (2) the court erred in failing to give a unanimity instruction, and (3) the court’s response to the jury’s question constituted a partial directed verdict for the prosecution. We affirm the judgment.
FACTS AND PROCEEDING
The Crime
Since defendant was acquitted of the obstruction and attempt to take a firearm charges, we omit summaries of the evidence related to those offenses. On January 9, 2015, Sacramento Police Officer Steven Andreazzi was on patrol in Del Paso Heights. At around 12:38 a.m. he was sent to the intersection of Ford Road and Altos Avenue to investigate a report of a five-foot six-inch Hispanic man who was around 40 and looked like a homeless person or someone the reporter saw in a wanted poster. The reporter described the man as having a medium build, curly hair in a ponytail, a blue shirt, and with a small dog.
Andreazzi did not find anyone at the intersection, so he went to Nuevo Park. Upon arriving at the park, Andreazzi found defendant, who was five-foot six-inches tall, had a medium build, long, knotted, and tangled hair, and was wearing a dark colored jacket. No dog was present. Although defendant was Asian rather than Hispanic, Andreazzi continued to investigate because eyewitnesses like the caller can make mistakes regarding a person’s race. He wanted to stop defendant to see if he was the reported person and also for violating a city ordinance of loitering in the park after sunset.
Andreazzi approached defendant and activated his marked patrol car’s spotlight on him. Defendant walked quickly through the park. Andreazzi followed defendant by making a U-turn and driving his patrol car southbound down the street. He continued around the park, temporarily losing sight of defendant until he emerged on the sidewalk outside the park. Andreazzi pulled up to defendant and told him to stop. Defendant did not stop until Andreazzi repeated the directive several times. Andreazzi asked defendant for his name; defendant replied that he was Michael Vannsa, and his birthday was October 1, 1982.
Andreazzi went back to his patrol car and checked the name on the computer. When he was unable to find a match, he asked defendant to repeat his name. After being asked another time, defendant walked away from Andreazzi and said he was going to the store. Andreazzi went after defendant and had to get out of the car and stop him.
Defendant was eventually arrested. When asked for his name, defendant did not respond. He was searched, and found in possession of an identification card that did not match the name he gave to Andreazzi. Andreazzi did not know that defendant was on probation at the time of the encounter.
The Jury Question
During deliberations, the jury asked the trial court: “When did the prosecutor state lawful detention took place?” The trial court e-mailed a proposed response to the defense and prosecution. In discussing the proposal with counsel, the trial court remarked it had inadvertently failed to instruct the jury on the community caretaking function of the officer, one of the prosecution’s theories justifying the legality of the detention. Since the prosecution previously requested instruction on this theory, the court decided to remedy its error by using its response to the jury’s question to instruct the jury on the community caretaking function. Defense counsel objected to the proposed response because it did not respond to the jury’s question, but rather gave facts and highlighted the prosecution’s theories of the case.
During the discussion, the trial court remarked, “Well, this is the approach I took. I think it is undisputed when the detention took place, correct?” Defense counsel replied, “Yes, so let’s give them that answer.” The trial court overruled the defense objections, but agreed with defense counsel’s request to include the prosecution’s burden of proving beyond a reasonable doubt that the detention was lawful.
The court gave the response, as modified by the addition requested by the defense, as follows:
“Request No. 2 When did the prosecutor state the lawful detention took place?
“Summarizing or reading back part of an attorney’s argument, though sometimes allowable, is not appropriate at this time. The jury is reminded that ‘[n]othing that the attorneys say is evidence.’ (Instruction No. 222.) In lieu of read back or summary, consider the following supplemental instruction.
“Undisputed evidence shows that Officer Andreazzi detained defendant Keosodsay when Mr. Keosodsay walked away from the park and Officer Andreazzi told him several times to stop. Whether that detention was lawful or unlawful is for the jury to decide, based on consideration of the evidence and the law.
“In this case, the prosecution relies on two justifications, one of which may be called the community caretaking function and the other based on suspicion of criminal activity.
“Community Caretaking Function
“Officer Andreazzi testified that he drove to Paso Nuevo Park in an effort to locate a suspicious subject, possibly a missing or wanted person, described in a police communication.
“A peace officer may briefly detain a citizen not suspected of criminal activity if, based on all of the circumstances, it was reasonable to do so. Among the circumstances for consideration are the officer’s training and experience and the information the officer relied upon initiating the detention, as well as the nature, location, and duration of the detention. Requesting identification does not necessarily render a detention unlawful. In other words, given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his community caretaking function.
“Suspicion of Criminal Activity
“As a second justification, standing alone or together with the community caretaking rationale, the prosecution contends that Officer Andreazzi reasonably suspected, based on facts known or apparent to him, that Mr. Keosodsay had been or was about to be involved in criminal activity, namely loitering after hours in the park in violation of a city ordinance. The test for determining whether a detention based on suspicion of criminal activity is lawful is more fully set forth in Instruction No. 2670 at page 10.
“It is the burden of the prosecution to prove beyond a reasonable doubt that a lawful detention took place.
“I remind the jury that, as with all of the instructions, ‘[s]ome of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I gave a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.’ (Instruction No. 200.)”
DISCUSSION
I
The Court’s Answer to the Jury’s Question
Defendant contends the trial court’s response to the jury’s question deprived him of a fair trial by improperly commenting on the evidence and advocating for the prosecution.
Section 1138 requires a trial court to provide a deliberating jury with information the jury desires on points of law. (People v. Smithey (1999) 20 Cal.4th 936, 985; People v. Hodges (2013) 213 Cal.App.4th 531, 539.) “This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. . . . It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97, citation omitted.) “We review for an abuse of discretion any error under section 1138. [Citation.]” (People v. Eid (2010) 187 Cal.App.4th 859, 882.)
Defendant argues the trial court’s response erred by asserting his detention was undisputed. Since there was no stipulation regarding any detention, defendant claims whether he was detained was an issue of fact for the jury to determine. He asserts the response advocated for the prosecution by repeating the prosecution’s two theories regarding the legality of the detention without presenting defendant’s arguments on the issue. Defendant also claims the response advocates for the prosecution by identifying “specific facts such as Officer Andreazzi’s . . . suspicions of appellant’s violation of a city ordinance and the related legal concepts that apply to those facts.” Finally, he finds the court’s statement, “[r]equesting identification does not necessarily render a detention unlawful,” improperly implies the detention was lawful.
Section 148.9, subdivision (a) provides: “Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor.”
Regarding the section 148.9 charge, the primary issue at trial was not whether defendant was detained, but whether his detention was legal. The prosecution offered two theories supporting the detention’s legality; defendant was violating the city ordinance against loitering in the park, and the community caretaking function, that Officer Andreazzi reasonably suspected that defendant was the person described in the dispatch. The defense did not dispute the fact of defendant’s detention, but rather argued that the detention was illegal because it was not supported by either theory offered by the prosecution.
For example, in closing, defense counsel argued, “This is about a lawful detention and whether they have proven beyond a reasonable doubt that there was a lawful detention in this case. [¶] There was not. The burden is on them to prove every element beyond a reasonable doubt. One of the elements is whether Mr. Keosodsay was lawfully detained.” A little later, counsel continued: “This is a case about a lawful detention; and a police officer, for little or no reason, does not get to stop you or you or you or you or any of you or a scruffy looking guy in the park just because; and that’s what we have here.” The defense never argued that defendant was not detained.
Viewed in this context, the jury’s question, “[w]hen did the prosecutor state the lawful detention took place,” demonstrates the nature of the jury’s confusion. The question was not when the detention took place, as the undisputed evidence shows defendant was detained when Andreazzi told him to stop. Rather, the question for the jury was whether the detention was lawful.
“Article VI, section 10 of the California Constitution provides, in pertinent part: ‘The court may make any comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.’ We have interpreted this provision to require that such comment ‘ “be accurate, temperate, nonargumentative, and scrupulously fair. The trial court may not, in the guise of privileged comment, withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate factfinding power.” ’ [Citations.] Thus, a trial court has ‘broad latitude in fair commentary, so long as it does not effectively control the verdict.’ [Citation.] ‘We determine the propriety of judicial comment on a case-by-case basis.’ [Citation.]” (People v. Monterroso (2004) 34 Cal.4th 743, 780.)
The trial court’s statement that the fact of the detention was undisputed was a comment on the evidence. It was accurate and helped dispel the jury’s confusion as shown by the question, and did not determine or unfairly comment on the real issue, whether the detention was lawful. We conclude it was a proper comment on the evidence.
Nor was it wrong for the court to state that asking for identification does not necessarily render a detention unlawful. That is merely a correct statement of the law. (See Hiibel v. Sixth Judicial Dist. Court (2004) 542 U.S. 177, 185 [159 L.Ed.2d 292, 302] [“Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment”]; People v. Vibanco (2007) 151 Cal.App.4th 1, 13.)
We also find no error for the court using the response to instruct the jury on the prosecution’s theories regarding the detention. Regarding the legality of the detention, the trial court’s original instruction to the jury declared that a detention was lawful if supported by reasonable suspicion that the person “is, or is about to be involved in activity relating to crime,” and that “[a]ny other detention is unlawful.” This effectively withdrew one of the prosecution’s theories supporting the detention that Officer Andreazzi reasonably suspected that defendant was the person described in the dispatch, that is, someone suspected of having been seen in a wanted poster or might be homeless. Defendant does not dispute the validity of this theory in the context of the stop here. (Cf. People v. Madrid (2008) 168 Cal.App.4th 1050, 1057 [community caretaking function can apply to detention of vehicle or persons inside vehicle].)
The trial court is required to instruct “upon every theory of the case supported by substantial evidence . . . .” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The court’s initial failure to instruct on the community caretaking justification was an error it was able to rectify in its response to the jury’s question. The response identified the prosecution’s theories in greater detail than the original instruction, noting Officer Andreazzi’s testimony about the dispatch and the prosecution’s theory regarding the loitering ordinance, but the court did not advocate for either theory. The court’s response informed the jury that it was the prosecution’s burden to prove beyond a reasonable doubt that the detention was lawful, and that determining that question was for the jury to decide. In light of the jury’s question, it was not an abuse of discretion to clarify the relevant issues in this manner.
II
A Unanimity Instruction
Defendant contends the trial court violated his due process rights by failing to give a unanimity instruction regarding the two legal justifications for the detention offered by the prosecution.
“[C]ases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act ‘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.]” (People v. Russo (2011) 25 Cal.4th 1124, 1132 (Russo).)
“On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.] The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. ([] § 459.) If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require the unanimity instruction. [Citation.]” (Russo, supra, 25 Cal.4th at pp. 1132-1133.)
Defendant committed one crime, giving false identification to an officer, through one act, giving a wrong name when asked by Officer Andreazzi after defendant was stopped. The two asserted justifications for the stop: defendant violating the loitering ordinance, and the community caretaking function, are theories of the case regarding an element of the crime, whether the detention was legal. No unanimity instruction was required.
III
DeFacto Directed Verdict
Defendant’s final contention is the statement in the trial court’s response, “undisputed evidence shows that Officer Andreazzi detained defendant Keosodsay when Mr. Keosodsay walked away from the park and Officer Andreazzi told him several times to stop,” constituted a partial directed verdict on this issue of his detention.
The Fifth and Sixth Amendments to the United States Constitution “require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. [Citation.]” (United States v. Gaudin (1995) 515 U.S. 506, 509-510 [132 L.Ed.2d 444, 449-450], fn. omitted.) “Under established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant’s rights under both the United States and California Constitutions.” (People v. Flood (1998) 18 Cal.4th 470, 479-480.) Such error is not reversible per se but is instead subject to a harmless error analysis. (Id. at pp. 490, 504.) Under the federal standard of harmless error from Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705], the question is whether it is clear beyond a reasonable doubt the jury verdict would have been the same even if the error had not been made. (Neder v. United States (1999) 527 U.S. 1, 18 [144 L.Ed.2d 35, 52-53].)
As previously discussed, the trial court’s statement was an accurate commentary on the evidence; the parties did not dispute that defendant was detained, the only issue was whether the detention was lawful. Even if we were to find this commentary improper, it is harmless beyond a reasonable doubt because it addressed an undisputed fact.
DISPOSITION
The judgment is affirmed.



HULL , Acting P. J.



We concur:



DUARTE , J.



RENNER , J.