P. v. LaFavor

Filed 7/13/07 P. v. LaFavor CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush and Charles P. McNutt, Judges.

Larry L. Dixon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

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Doyle Lee LaFavor appeals from a conviction of attempting to deter an executive officer from his or her duty. (Pen. Code,  69.) LaFavor argues that the trial court erred in not providing a unanimity instruction. He contends that the instruction was required because his resistance involved two distinct incidents of conduct. As a result, the jury could have reached different judgments as to which act formed the basis for their verdict. LaFavor argues that the omission of this instruction deprived him of his constitutional rights to due process and a unanimous jury verdict. He additionally argues that the trial court violated his Sixth Amendment right when it imposed the upper term based on facts not decided by a jury. We conclude that the unanimity instruction was not required, but, that even if it were, the omission resulted in harmless error. We also conclude any error under the Sixth Amendment harmless beyond a reasonable doubt. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

On December 5, 2004, officers arrived at a residence in the Ford City area to serve a search warrant. The warrant included the authority to search for LaFavor. Upon law enforcements arrival, LaFavor initially appeared at the door, but then shut the door. LaFavor testified that, after he shut the door, he entered the homes attic. From the attic, LaFavor entered the evaporative cooling ductwork. He proceeded through the duct along the homes back exterior wall connecting to a swamp cooler. A cross-section of the aluminum duct measured approximately one and one-half square feet. Positioned at the rear of the home, Kern County Sherriffs Deputy Skidmore moved the evaporative cooler exposing an opening to the duct and LaFavors feet. Skidmore identified himself and directed LaFavor to exit the duct. After LaFavor refused to exit, Skidmore attempted to pull LaFavor from the duct. He testified that LaFavor kicked and pulled his feet from Skidmores grasp, trying to climb back up the duct. Skidmore grabbed LaFavors feet again and successfully pulled him from the duct with LaFavor landing on the ground. Taft City Police Department officers Eveland and Little joined Skidmore in the backyard. As LaFavor attempted to stand, Eveland and Little brought him back to the ground. LaFavor began to swing his arms violently and to kick his legs despite the officers instructions to stop resisting.

During the struggle, LaFavor grabbed a nearby porch pole with his right arm and, using what Little described as a very good grip, continued to resist the officers. LaFavor then swung his left arm at Skidmore. Eventually, Skidmore managed to overcome LaFavor. Meanwhile, Little managed to remove LaFavors right arm from the pole and restrain his right arm bringing the struggle to an end.

LaFavor was charged with one count of attempting to deter an executive officer from performing his or her duty. (Pen. Code,  69.)^[1] The information included special allegations that LaFavor had previously suffered a prior strike ( 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)) and four prior prison terms. The matter was tried before a jury.

At trial, LaFavor denied kicking Skidmore while in the duct. Instead, LaFavor testified that he kicked to try and free himself from the metal lap edges inside the ductwork. Once outside the duct, LaFavor maintained that he did not kick but instead used his feet to scoot away from the officers who were twisting his arms. In addition, he contends that he did not grab the pole but instead that Little twisted his arm around the pole.

In her closing, defense counsel offered other explanations for LaFavors actions. First, she maintained that not enough space existed in the duct to allow LaFavor to kick Skidmore. Second, any contact made with officers once LaFavor exited the duct was accidental. Finally, she argued that the officers use of unreasonable force justified LaFavors conduct.

The jury found LaFavor guilty as charged. In a bifurcated proceeding, the court found LaFavors prior convictions true. LaFavor was sentenced to a term of six years, doubling the upper term limit, and striking the four prior prison terms.

In an opinion filed on August 21, 2006, we affirmed the judgment. LaFavor filed a petition for writ of habeas corpus in the United States Supreme Court. The Supreme Court vacated our opinion and remanded the matter to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). The remittitur was recalled on March 1, 2007. Additional briefing was filed on the Cunningham issue.

DISCUSSION

I. Unanimity instruction

At trial, the prosecutor argued that he was relying on a specific course of conduct that began when Deputy Skidmore grabbed LaFavors feet and ended with LaFavors arrest. LaFavor contends that his actions both in and out of the duct amount to distinct and separate acts which could constitute the crime charged. LaFavor argues that the trial court erred by failing to instruct, sua sponte, on unanimity (CALJIC No. 17.01) as the jurors may not have agreed as to which of the two events constituted the offense. Respondent contends no error occurred. We agree and affirm the lower courts judgment.

When a defendant is charged with a single criminal act but the evidence reveals more than one such act, the prosecution must either select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. [Citations.] The unanimity requirement is constitutionally rooted in the principle that a criminal defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. [Citations.] (People v. Brown (1996) 42 Cal.App.4th 1493, 1499-1500.) Even absent a request, the court should give the instruction where the circumstances of the case so dictate. [Citation.] (People v. Riel (2000) 22 Cal.4th 1153, 1199.)

A unanimity instruction is not required, however, if the case falls within the continuous-course-of-conduct exception. This exception arises in two contexts. The first occurs when the acts so closely connect that they form part of one and the same transaction, and thus, one offense. (E.g., People v. Mota (1981) 115 Cal.App.3d 227, 231-234 [repeated acts of rape during one hour].) The second occurs when the statute contemplates a continuous course of conduct of a series of acts over a period of time. (People v. Thompson (1995) 36 Cal.App.4th 843, 851.)

Here, the prosecutor in closing argument specified the particular act he relied upon to prove the charge. He specifically limited the acts supporting the charge to include only LaFavors conduct once he exited the duct. The prosecutor stated:

I do want to make something else clear. Its pretty obvious that before that event happened in the back yard when he came out of that square vent, he was clearly trying to resist what the officers were doing, but thats not what we are talking about here. We are only talking about what happened once Deputy Mark Skidmore -- by the time he grabbed his feet until he was handcuffed and walked out. Just that incident.

Any confusion over whether the prosecutor intended to include conduct occurring inside the duct was eliminated in the prosecutions rebuttal when he further clarified, [w]e only want to know if some time after seven oclock after he came out of that vent was he applying force when he didnt want those officers to arrest him. (Italics added.) Given these statements, we reject LaFavors attempt to characterize his conduct as two separate incidents, one inside the vent or one outside, since the first was not relied upon to prove the charge.

Even assuming the jury may have separately considered LaFavors conduct inside the duct, the law does not support his position. As respondent contends, People v. Lopez (2005) 129 Cal.App.4th 1508 (Lopez) is analogous to the case at bar. In Lopez, thedefendant argued that the court had failed to provide a unanimity instruction on a charge that defendant violated section 148, resisting or obstructing a peace officer. (Lopez, supra, at p. 1533.) Lopez had struggled with multiple officers as they brought him into custody. Once handcuffed, he pushed away from officers when they tried to force him into their patrol car. (Id. at pp. 1518, 1519.) Lopez contended that some jurors could base their conclusions on defendants conduct towards one officer with other jurors reaching their conclusion with reference to defendants conduct in resisting a different officer . (Id. at p. 1533.) The Lopez court applying the exception stated:

When two offenses are so closely connected in time that they form part of one transaction, no unanimity instruction is required. (See People v. Diedrich (1982) 31 Cal.3d 263, 282.) Similarly, when a prosecutor elects to rely on multiple acts in a continuous course of conduct as one crime, no unanimity instruction is required. [Citation.] (Lopez, supra, 129 Cal.App.4th at pp. 1533-1534.)

Here, as in Lopez, the prosecution did not argue that two distinct acts could serve as the basis for the charge. Instead, the prosecution characterized LaFavors actions as a single incident. Further, even accepting LaFavors characterization of the event as two incidents, witnesses testified that approximately 10 seconds passed once LaFavor exited the duct and before he continued to resist the officers. Similar to Lopez, we find that 10 seconds is sufficiently close in time to form a single transaction. (People v. Haynes (1998) 61 Cal.App.4th 1282 [two encounters minutes apart amounted to one robbery]; People v. Mota, supra, 115 Cal.App.3d at p. 232 [finding those cases where prosecution was required to specify acts charged, acts were separated by days, weeks or months].)

As LaFavor correctly points out, the continuous conduct exception 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. [Citation.] (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) He argues that the jury was provided with a rational basis for distinguishing between the acts because he offered different defenses for each portion of his conduct. As such, the continuous-conduct exception should not apply. We do not agree. As stated above, we are persuaded that this incident is best characterized as a continuous course of conduct. Even though LaFavor attempted to offer different defenses, the differences are not significant given the nature of the conduct and the course of these events.

Assuming, arguendo, a unanimity instruction was required, we find that under any standard, the error was harmless. The officers testimony was substantially consistent as to each factual segment of the incident. The jury, in reaching its verdict, obviously found the officers credible and rejected LaFavors version of events. It is not reasonably probable that the jury could have found only a portion of the officers testimony credible. It thus could not have found LaFavor guilty of resisting one officer but not another, or of resisting one attempt at restraint but not another. LaFavor was not prejudiced by a failure to provide the instruction.

II. Sentencing issues under Blakely and Cunningham

LaFavor asserts that his sentence violates the Sixth Amendment as interpreted in Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and now in Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856] (Cunningham). He argues that the decision to impose the upper term was improper because the upper term was selected on facts not found by the jury. (Blakely, supra, 542 U.S. 296; Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856].) In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), a five-justice majority of the United States Supreme Court held that, [o]ther 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. (Id. at p. 490.) Blakely held that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] (Blakely, supra, 542 U.S. at p. 303, italics omitted.) In Cunningham, the court held that, under Californias determinate sentencing scheme, the upper term can only be imposed if the factors relied upon comport with the requirements of Apprendi and Blakely. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856].) Blakely describes three types of facts that a trial judge can properly use to impose an aggravated sentence under a sentencing system in which an aggravated sentence must be supported by facts: (a) the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301); (b) facts reflected in the jury verdict (id. at p. 303, italics omitted); and (c) facts admitted by the defendant. (Ibid., italics omitted.)

After briefing was completed in this case, the United States Supreme Court issued its decision in Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], overruling People v. Black (2005) 35 Cal.4th 1238, which had found that Californias indeterminate sentencing scheme did not as written violate Blakely. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 860, 871].) The imposition of an upper term under California law is thus unconstitutional unless it is based on prior convictions, facts found by the jury, or facts admitted by the defendant. (Blakely, supra, 542 U.S. at pp. 301-303) The first type is at issue here.

The trial court stated that it would impose the upper term of six years because there were no mitigating factors and because (1) LaFavors prior convictions were numerous as an adult and there were numerous sustained juvenile delinquency proceedings; (2) he had served a previous commitment in California Youth Authority (now California Department of Corrections and Rehabilitation, Juvenile Justice); (3) he was on probation and parole when the current crime was committed; and (4) his prior performance on probation and parole was unsatisfactory (given that the current offense was committed). The trial court commented that this last factor was somewhat duplicative of the third aggravating factor.

All of the courts findings presupposed prior convictions: LaFavor had a number of prior convictions; he had served a prior commitment; his prior performances on probation and parole were unsatisfactory; and he had committed the current offense while on probation and parole. At least one of theseLaFavors criminal recordcannot meaningfully be distinguished from Blakelys formulation, approving the use of the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301) to increase a sentence. It would not make sense to say that the trial court is entitled to rely on one prior conviction but not on several. The trial court properly relied on this factor.

We need not decide whether the imposition of the upper term ran afoul of the Supreme Courts precedents in this case by relying on other factors arguably not permitted under Cunningham, because we conclude any error was harmless. (Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546, 2553] [failure to submit sentencing factor to jury not structural error, harmless error analysis applies].) Even if it were error for the trial court to rely on the other factors related to his prior convictions, but not limited to the fact of his prior convictions, a question we do not decide, we are confident that the error was harmless beyond a reasonable doubt under the circumstances of this case. (Chapman v. California (1967) 386 U.S. 18.) LaFavors criminal history was the dominant factorin the background of aggravating factors found. There is no likelihood that the court would have imposed a different sentence had it been directed that it could rely only on the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301) in imposing the upper term.

DISPOSITION

The judgment is affirmed.

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^*Before Harris, Acting P.J., Wiseman, J., and Cornell, J.

^[1]Subsequent statutory references are to the Penal Code unless indicated otherwise.