P. v. Vasquez

Filed 8/31/09 P. v. Vasquez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William Lee Evans, Judge. Reversed and remanded.

Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendant Freddy Gonzalez Vasquez of attempted murder (Pen. Code, 187, subd. (a), 664, subd. (a); all statutory references are to this code unless noted) and assault with a deadly weapon ( 245, subd. (a)(1)). The jury also found he personally used a deadly weapon ( 12022, subd. (b)(1)). Defendant contends the trial court erred by failing to instruct sua sponte on unanimity (Judicial Council of Cal. Crim. Jury Instns. CALCRIM No. 3500). For the reasons expressed below, we reverse the judgment.

I

Factual and Procedural Background

On the evening of February 6, 2007, Ricardo Puentes drove from his Newport Beach office to pick up his girlfriend Elizabeth Cardenas in Santa Ana, and then stopped across the street from a taco truck parked about a block from their Huntington Beach home. As Puentes walked across the street to the taco truck, he spotted defendant, who used to live in the neighborhood, waiting for his order.

Puentes had not seen defendant in about two years. When Puentes was 15 or 16 years old (he was 21 at defendants February 2008 trial), he and defendant had several arguments culminating in fist fights. In October 2002, defendant and some friends pulled up in front of Puentess home and defendant asked for Mario, who was Puentess cousins friend. Defendant appeared angry. When Puentes told him Mario was not there, defendant challenged Puentes to fight. Puentes declined, defendant laughed and punched him in the face, and Puentes hit him back. Puentes, who was larger but a few years younger than defendant, fled. He stumbled briefly and defendant kicked him several times. Defendant chased Puentes to a neighbors house but stopped his pursuit and left the scene, stating, I will get you later.[1]

Around the same time, Puentes sat outside a former girlfriends home when defendant drove up, smiled at, and mumbled something to the girlfriend. Puentes glared and made an obscene gesture. Defendant approached angrily, asking what are you going to do? Puentess older brother intervened and beat defendant up. Puentes kicked defendant at least once while his brother had defendant pinned down. As defendant left, he warned Puentes its not going to stay like this.

A few years later, Puentes was walking down a neighborhood alley when he saw defendant washing his car. Defendant mumbled something and Puentes challenged him to fight. Defendant derided Puentes for calling the police after an earlier confrontation but declined to fight, explaining that his back hurt.

On the current occasion, Puentes ordered food and walked back to his car. He rolled down the drivers side window and told Cardenas he did not trust defendant, and if anything happened she should call the police. He walked back to wait for his order. Defendant paid for his food and walked to his landscaping truck parked behind the taco truck. Thinking defendant was not going to confront him, Puentes began playing a game on his mobile phone.

Suddenly, defendant appeared in front of the taco truck, running toward Puentes. As Puentes turned away, defendant hit him on the back of the head with what appeared to be bolt cutters. Dazed, Puentes fell to the ground. Defendant continued to strike him as he lay on the ground. Puentes covered his face with his hands. Defendant hit him six or seven times, landing blows on Puentess face, chest, and back. Puentes recalled he may have exclaimed, [P]lease, stop, my moms in the car, I dont want her to see me die.

Defendant aborted the attack and walked toward Puentess car. Fearing defendant would harm Cardenas, Puentes yelled at defendant he would fight him if defendant discarded the bolt cutters. Defendant turned toward Puentes, who was dialing 911 on his mobile phone. Defendant did not drop the bolt cutters but pursued Puentes, who dropped his phone as he ran up the sidewalk towards Slater Avenue. Defendant picked up Puentess phone, which showed an emergency call in progress, and threw it to the ground, shattering it. Still dizzy, Puentes fell and defendant hit him with the bolt cutters again. Puentes managed to stand up and run again, falling 20 feet later. Defendant exclaimed he wanted to kill Puentes. He stabbed at Puentes with the bolt cutters five or six times but Puentes rolled out of the way each time. Puentes pushed himself up and continued running. He stopped a car, driven by a girl he knew from high school, Carolina Martinez, who drove Puentes back to his car and called the police. Defendant fled the scene. Puentes suffered a fractured wrist and numerous cuts and abrasions. He was hospitalized for several days, lost two fingernails from the attack and his right middle finger was still numb at trial.

One of the taco truck workers heard a scream for help and saw defendant chase Puentes past the order window with what she described as red pinzas. Puentes fell backwards on the sidewalk. Defendant held the pinzas over Puentes as if to hit him and Puentes said something like dont hit me. My mother is in the car. Defendant lowered his hand and departed.

A criminalist found a few drops of blood and a pair of black handgrips in the street north of the taco truck. Police officers who spoke to Puentes at the scene and followed the ambulance to the hospital testified Puentes was in shock and appeared to be in pain. Officers observed blood on his face, shirt, and hands and several cuts and scrapes.

Puentes did not mention to investigators he challenged defendant to drop the bolt cutters and fight. He also did not report defendant attempted to stab him numerous times but he dodged his blows. Nor did he mention defendants threats to kill him. The parties stipulated Puentes also did not mention at the preliminary hearing that defendant had threatened to kill him during the attack.

Defendants testimony at trial presented a different account of the incident. He acknowledged the earlier altercations with Puentes and Puentess brother. He also explained he had been in two other threatening situations while living in the neighborhood. The first involved a confrontation with a local gang member who challenged defendant to fight when he learned defendant grew up in Pachuca, Mexico. A few months later, two men attacked him in an alley when they learned he was from Pachuca. Defendants uncle ushered defendant into a nearby building. Defendant heard gunshots and when the assailants departed, defendant discovered several bullet holes in his car.

As to the charged offense, defendant claimed he initially acted in self-defense when Puentes confronted him. Defendant, accompanied by a coworker, parked his gardening truck near the taco stand and placed his order. He saw Puentes peek from around the corner of the taco truck and then leave. Based on their previous encounters, defendant anticipated a possible confrontation. Puentes returned and stood behind him, asking in Spanish whats up? in an aggressive tone, before ordering food. Defendant walked to his truck after being served his tacos. After he placed the tacos on the seat, Puentes approached and said fuck Pachuca. Puentes stood about three feet away with his legs apart and one hand behind his back at waist level. Fearing a life threatening assault, defendant grabbed a pair of garden clippers from a hook on the outside of his truck and struck Puentes on the hands as Puentes raised them to shield his face. He hit Puentes three times and Puentes fell down backwards. Defendant chased Puentes north past the taco truck window towards Slater. Puentes tripped in front of the taco truck and fell in the street, but got up immediately and ran to the other side of the street. He fell again. Defendant caught up to him and would not let him stand up. He raised the clippers over Puentess head, but hesitated when Puentes showed his hands and exclaimed his mom was in Puentess car. Defendant concluded that Puentes could not do anything to him so he lowered the clippers and said he did not want any more trouble. Defendant began walking back toward the taco truck when he saw Puentes using his mobile phone. Believing Puentes belonged to the gang that had assaulted him and fired gunshots at his car and fearing Puentes was calling friends to back him up, defendant began chasing him again. Puentes dropped the phone as he fled upon defendants approach. Defendant picked it up, slammed it on the ground, and continued to chase Puentes until Puentes flagged down Martinezs car. He thought the car contained Puentess backup and therefore ran back down the street. His truck was gone so he walked to his coworkers house.

Defendant denied intending to kill Puentes: My thought was only to defend myself and try to disarm him. At no time did it come to my head, to my mind to kill him . . . . He also denied Puentes pleaded with him for his life.

Defendant moved out of his house about a week after the incident and officers arrested him on March 7 in his uncles garage. Asked by an officer after his arrest if there was something that provoked him, defendant hesitated, then explained that Puentes claimed those from Pachuca arent worth shit. As he walked away with his tacos, Puentes made a movement with his right hand toward his waistband as if to pull a weapon. Defendant then retrieved the pinzas, walked back and hit Puentes. Defendant never told the officer Puentes followed him back to the gardening truck.

Following trial in February 2008, a jury convicted defendant of attempted murder, assault with a deadly weapon, and found the allegation he used a deadly weapon to be true. The jury concluded he did not inflict great bodily injury. ( 12022.7.) The trial court imposed an aggregate sentence of six years comprised of the five-year low term for attempted murder and a consecutive one-year term for the weapon use enhancement. The court stayed a three-year midterm sentence for assault with a deadly weapon. ( 654.)

II

Discussion

Failure to Give Unanimity Instruction

Defendant contends the trial court should have given sua sponte a unanimity instruction because the evidence showed three separate and distinct attacks that could have supported the attempted murder charge: the first, occurring when defendant initially attacked Puentes near the taco truck; the second, when Puentes fell to the ground while attempting to flee; and the third, when Puentes again fell in the street after running about 20 feet. Defendant asserts we must reverse the attempted murder conviction because the prosecutor failed to elect which act it relied on to support the charge and the trial court failed to instruct the jury they must unanimously agree on which act defendant committed.[2] We agree the trial court erred in failing to instruct the jury they had to agree unanimously which of defendants acts, if any, constituted attempted murder.

Defendants in criminal cases have a constitutional right to a unanimous jury verdict. When a defendant is charged with a single criminal act, but the evidence reveals more than one instance of the charged crime, either the prosecution must select the particular act upon which it relies to prove the charge or the jury must be instructed that it unanimously must agree beyond a reasonable doubt that defendant committed the same specific criminal act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) If the prosecution does not make a selection, the court has a sua sponte duty to give an instruction along the lines of CALCRIM No. 3500, stating that the jury must unanimously agree upon the act or acts constituting the crime. (Russo, at p. 1132.) CALCRIM No. 3500 provides in pertinent part: The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed. (See also CALJIC No. 17.01)

The purpose of the unanimity instruction is to prevent a verdict that results from some jurors believing the defendant committed one act and others believing the defendant committed a different act, without agreement on what conduct constituted the offense. (People v. Washington (1990) 220 Cal.App.3d 912, 915-916.)

Here, the trial court failed to give a unanimity instruction, and the prosecutor failed to rely on a particular act for the attempted murder count. Defendant argues these omissions constituted reversible error because there was a reasonable basis for the jury to distinguish one attack from another. All three attacks . . . took place at different spots. . . . The . . . details of each attack were also different. In the first attack, [defendant] struck a standing Puentes in the face/head with the bolt cutters . . . ; in the second, [defendant] struck Puentes with the bolt cutters while he was in a more defenseless position on the ground . . . ; and in the third, [defendant] tried to stab Puentes with bolt cutters while he was on the ground. The second and third attacks were further distinguishable, respectively, by the existence of a 911 audio recording . . . and by [defendant]s alleged accompanying statement that he wanted to kill Puentes . . . . Defendant also asserts his defenses differed. With respect to the first attack, [defendant] admitted the beating but claimed he did so out of self-defense. It was Puentes who followed [him] to his truck and, given their history, caused [defendant] to fear for his life so that he grabbed a gardening tool and struck Puentes in the face/head. . . . Regarding the two subsequent beatings, however, [defendant] denied them altogether.

The attempted murder charge required proof beyond a reasonable doubt that defendant intended to kill Puentes and took a direct but ineffectual step toward killing him. (People v. Stone (2009) 46 Cal.4th 131, 136.) In his final summation, the prosecutor argued the evidence showed defendant attempted to kill Puentes in the initial attack by the taco truck based on the number of blows and the fact defendant aimed a deadly weapon at Puentess head.[3] The prosecutor also cited defendants pursuit of Puentes and subsequent attack as further evidence defendant attempted to murder the victim.[4] Consequently, some jurors may have concluded the attack by the taco truck (or by defendants truck depending on whose version of events the jurors believed) constituted the act of attempted murder, while others may have relied on the attempted stabbing incident, or a combination of more than one act.

The Attorney General relies on the continuous course of conduct exception. [N]o unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct. The continuous conduct rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citations.] (People v. Dieguez (2001) 89 Cal.App.4th 266, 275.)

The continuous conduct exception is a limited exception to the unanimity requirement. It applies where the acts have such a close temporal relationship that they are part of one transaction or the offense is one that may be continuous in nature. (People v. Diedrich (1982) 31 Cal.3d 263, 281-282.) The continuous course of conduct exception when the acts are so closely connected that they form one transaction is meant to apply not to all crimes occurring during a single transaction but only to those where the acts testified to are so closely related in time and place that the jurors reasonably must either accept or reject the victims testimony in toto. [Citation.] (People v. Melendez (1990) 224 Cal.App.3d 1420, 1429, disapproved on other grounds in People v. Majors (1998) 18 Cal.4th 385, 408.) In other words, where there is no evidence from which the jury could have found the defendant guilty of one act, but not the other, such as where different defenses are asserted as to each, there is no danger that different jurors would find him guilty of different acts. (People v. Riel (2000) 22 Cal.4th 1153, 1199.)

Here, the trial court should have given a unanimity instruction because defendant asserted different defenses, which, under these circumstances, renders the continuous conduct exception inapplicable. Defendant claimed he acted in self-defense in the initial confrontation, and the trial court instructed the jury on self-defense principles per CALCRIM No. 3470, and also instructed on the theory of imperfect self-defense per CALCRIM No. 604. As to the subsequent attacks Puentes described, defendant denied the acts, claiming he walked away without striking a blow when Puentes explained his mother was nearby, and Puentes obtained a ride before they could resume their confrontation. Consequently, some jurors could conclude defendants initial attack constituted attempted murder, but accept defendants claim he did not attempt to harm Puentes further, while others might accept the self-defense or imperfect self-defense claim, but believe defendants subsequent pursuit and attack of the victim demonstrated his commission of the crime. A unanimity instruction would have ensured that the jury understood it must unanimously agree on the factual basis for the verdict. Here, the trial court committed what has been called the most common kind of instructional error in criminal cases by failing to sua sponte provide the jury with a unanimity instruction.[5] (People v. Norman (2007) 157 Cal.App.4th 460, 467.)

There is a split of authority on which standard of review to employ in evaluating whether the failure to give a unanimity instruction requires reversal. One approach is to utilize the less demanding standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836-837, which requires reversal only if it is reasonably probable the defendant would obtain a more favorable outcome in the absence of the error. Cases using the Watson standard reason there is no federal constitutional right to a unanimity instruction because there is no federal constitutional right to a unanimous jury verdict. Consequently, the right to a unanimity instruction derives from the state Constitution, and therefore the state constitutional requirement for appellate review, as set forth in Watson, applies. (See People v. Smith (2005) 132 Cal.App.4th 1537, 1546 (Smith); People v. Wolfe (2003) 114 Cal.App.4th 177, 186 (Wolfe); People v. Vargas (2001) 91 Cal.App.4th 506, 562.)

Other cases apply the Chapman standard of review, which requires the government to prove beyond a reasonable doubt the error complained of did not contribute to the verdict obtained. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) These cases recognize the definition of a crime is a matter of state law, but once state law has defined what constitutes a single instance of a crime the unit of prosecution the federal Constitution requires proof beyond a reasonable doubt that the defendant committed that crime. (Wolfe, supra, 114 Cal.App.4th at p. 186, original italics.) In other words, all jurors must base their guilty verdict on the same state-defined criminal act, and the failure to instruct on this crucial point lowers the prosecutions burden of proof, thereby violating due process. (Ibid.) We find the reasoning in these cases more persuasive and therefore apply the Chapman standard of review to determine whether reversal of defendants attempted murder conviction is required.

Even under the more stringent Chapman standard, Where the record [contains] 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 [the] defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. (People v. Thompson (1995) 36 Cal.App.4th 843, 853 (Thompson), italics added.) Also, if the record shows the jury resolved a basic credibility dispute against the defendant, thus convicting him of any of the various acts shown by the evidence, the failure to give the unanimity instruction is harmless. (People v. Jones (1990) 51 Cal.3d 294, 307.)

As noted above, the record contains a rational basis for the jury to have distinguished between the acts, and we cannot say beyond a reasonable doubt the jury unanimously found defendant culpable for all the criminal acts Puentes described. (Thompson, supra, 36 Cal.App.4th at p. 853.) Nor can we say the jury resolved the basic credibility dispute against the defendant. It is reasonably possible some jurors may have rested guilt on the evidence of the initial attack, while others may have based their guilty verdict on defendants pursuit and attack of the victim after the initial assault without all the jurors agreeing unanimously on which criminal act constituted attempted murder. (Smith, supra, 132 Cal.App.4th at p. 1546 [although improbable, it is certainly reasonably possible the jury did not agree on the criminal act; therefore, Chapman standard required reversal].) Accordingly, we conclude the trial courts failure to give a unanimity instruction was not harmless beyond a reasonable doubt and therefore we reverse defendants attempted murder conviction.

III

Disposition

The judgment is reversed, and the matter is remanded for further proceedings. If the People elect not to try defendant on the attempted murder charge (count 1) or, if defendant is retried and found not guilty of attempted murder, the trial court shall lift the stay of execution of the sentence previously imposed on the assault with a deadly weapon conviction (count 2).

ARONSON, J.

WE CONCUR:

SILLS, P. J.

OLEARY, J.

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[1] Defendants recollection of the incident was slightly different. He testified he was driving by when Puentes stared aggressively at him. Defendant stopped and asked him why he and his brother had punched him on an earlier occasion. Puentes said what are you going to do and threw a punch at him. He punched Puentes back and Puentes took off running.

[2] Defendant makes no argument contesting his conviction for assault with a deadly weapon.

[3] The prosecutor described the initial attack as follows: Now, the attack. . . . The defendant comes from the front, hits the victim in the head with the weapon, victim goes down to the ground. Defendant continues to hit the victim five to six times. The defendant is trying to kill the victim with blows to the face and head because that is what he is doing. He hits him in the head. The victim goes down. The defendant is not hitting him in the kneecaps, not hitting in the toes, not hitting in the thigh. He is trying to strike him in the face and head and with that object that can kill you.

[4] The prosecutor described this act as follows: The defendant then begins to walk away towards Speer. Victim gets up and runs towards Slater. Now, according to the defendant himself what do we know happens next? The victim gets out his cell phone and dials 911. The defendant hears the phone and chases the victim to kill him, to finish him off. Why? The defendant ends up striking the victim as he runs on Slater. That is what he told Officer Preece. The victim is dizzy and disoriented. He falls again. The victim goes down to the ground. Defendant hits the victim five or six times. The defendants trying to kill the victim with blows to the face and head. How do we know that? Because after the victim pulls out his cell phone that is when the defendant says I heard the noise so I chased after him and I chased after him as fast as I could. That means he went from 100 feet to another 150 feet to chase down the victim. Why? To finish him off.

[5] We agree with the Attorney General the second and third attacks occurring as Puentes attempted to flee toward Slater Avenue constitute a continuous course of conduct. Because defendant denied committing these acts, and the criminal acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jurys understanding of the case. (People v. Crawford (1982) 131 Cal.App.3d 591, 599.) But as we explain above, defendants self-defense claim on the initial confrontation described a separate, discrete incident that required a unanimity instruction under these facts.