Filed 6/27/17 P. v. Markell CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
ANDREW JOSEPH MARKELL,
Defendant and Appellant.

A148206

(Napa County
Super. Ct. No. CR169682)


Defendant was convicted by a jury of two counts of making criminal threats against two victims. Defendant contends the trial court erred by failing to instruct sua sponte on unanimity. Because defendant was engaged in a continuous course of conduct, the prosecution was not required to make an election of a discrete criminal act, and thus the court was not obligated to sua sponte give a unanimity instruction. We therefore affirm.
I. BACKGROUND
Jordan McKee and Kevin Villanueva worked as security guards at Saint Helena Hospital. About 6:00 p.m. on July 31, 2013, both guards were called to a patient’s room on the fourth floor on a report of a combative person. McKee had received information that “a couple of days prior to this incident” an individual had been escorted off the St. Helena Hospital property “each day” because of “domestic issues with an ex-girlfriend.” The day before, Villanueva had heard a call and received information from other security guards about a male being verbally abusive in the same patient’s room and that security had “walked him out of the hospital.”
When McKee and Villanueva arrived in the patient’s room within about a minute of each other, the patient, her mother, a male nurse, and defendant were in the room. Defendant was “loud and hollering” and the patient was on the bed crying and looking scared. A male nurse, according to McKee, was between defendant and the patient. Before McKee and Villanueva arrived, defendant had been asked to leave by medical staff, but had refused. Because defendant was now considered a trespasser, and because “it was already pretty amped up,” both security guards escorted defendant out of the room.
As the security guards were walking defendant through the fourth floor hallway, he was “hollering [and] yelling at everybody” and “making a huge scene.” He picked up a pen off the floor, stating it was a great weapon, he could stick it in the eye, or poke it in the neck, and had used a pen before in San Quentin. While holding the pen, he called McKee and Villanueva “rent-a-pigs,” bragged he was a felon, and “could do what he wanted” to them, and would come back to the hospital. As he made these remarks, defendant lunged at McKee, with a “downwards stabbing motion.” McKee was scared. Villanueva was also scared when defendant was talking about how he had been to jail and how he could “cause damage” if he were to stab him and McKee. Defendant eventually threw the pen on the ground. Because McKee was under the impression the “radio operator” had called the police, he told defendant the police were on their way and defendant needed to leave. Though McKee attempted to calm defendant, he was still very angry.
Eventually, the security guards took defendant down to the first floor in the elevator and walked him past emergency and out of the hospital. As they were walking on the first floor, defendant told the guards, “I’m gonna get you guys and when we come back I’m going to do you in.” It only took four or five minutes to travel from the elevators to the double doors to go outside. During the period of time between the pen incident and reaching the hospital exit, defendant was talking and “spilling out anger, just pissed” the whole time. When they were outside of the hospital, defendant was “getting fired up again as he got closer to the van,” stating, “I got something for your guys,” and was “just threatening the whole time.” Just as defendant got within a few feet of his vehicle, he “sprinted for it,” immediately opened the door, and “dove for something under the seat.” Though McKee never saw the item, he heard “clanking and rattling” and “metal on metal.” Since the security guards had nothing with which to defend themselves, they ran behind a wall close to a neighboring church, “anything to get out of sight of the vehicle,” and watched defendant leave the parking lot.
Between the time defendant, McKee, and Villanueva left the patient’s room and defendant left in his vehicle, according to McKee, “it wasn’t very long at all[,] 15 to 25 [minutes]. If that.” Defendant talked continuously during that timeframe. Based on defendant’s statements, his actions, and the entire situation, McKee thought there was a serious possibility defendant would follow through with his threats. After defendant drove away from the hospital premises, McKee and Villanueva started locking down the hospital.
An information was filed charging defendant with two counts of making criminal threats. (Pen. Code, § 422.) Two months later, criminal proceedings were suspended to determine defendant’s competence to stand trial. (Pen. Code, § 1368.) The court ultimately found defendant competent and reinstated criminal proceedings. At the conclusion of trial, the jury found defendant guilty as charged. Defendant was sentenced to state prison for one year four months.
II. DISCUSSION
At the commencement of trial, defendant filed an in limine motion to compel the prosecution to elect the specific acts upon which it would rely to prove both charges. The motion alleged there were “three distinct interactions” between defendant and the security guards: (1) defendant’s remarks and actions on the fourth floor; (2) his remarks and actions on the first floor; and (3) his remarks and actions outside of the hospital in the parking lot. The court denied the motion and did not give a unanimity instruction because it was of the opinion the jury “may decide whether the defendant’s conduct in toto during that period of time constituted a violation of the statute.” The court further observed there was not a reasonable basis for the jury to distinguish between the acts, and thus unanimity was not required where the acts were closely connected in time and subject to the same defense.
Because the trial court did not compel the prosecutor to make an election of the act or acts constituting criminal threats, defendant contends the trial court had a sua sponte duty to instruct the jury with a unanimity instruction as to the two charged offenses. A claim of instructional error presents a question of law subject to de novo review. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) We reject defendant’s claim of instructional error.
Under the California Constitution, a unanimous jury verdict is required to convict a person of a criminal offense. (Cal. Const., art. I, § 16; People v. Russo (2001) 25 Cal.4th 1124, 1132.) The jury must agree unanimously the defendant is guilty of a specific crime. (People v. Diedrich (1982) 31 Cal.3d 263, 281.)
When a defendant is charged with a single criminal offense, but the evidence suggests more than one discrete crime, all the jurors must agree the defendant committed the same act. If the prosecution does not elect to rely upon a single criminal act, then the trial court has a sua sponte duty to instruct the jury it must unanimously agree the defendant committed the same specific act. (People v. Russo, supra, 25 Cal.4th at p. 1132.) This requirement “ ‘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.’ ” (Ibid.)
A unanimity instruction is not required, however, “if the case falls within the continuous-course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ [citation], or ‘when . . . the statue contemplates a continuous course of conduct of a series of acts over a period of time’ [citation]. There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime.” (People v. Jennings (2010) 50 Cal.4th 616, 679; see People v. Maury (2003) 30 Cal.4th 342, 423, disapproved on other grounds in Barnett v. Superior Court (2010) 50 Cal.4th 890, 901 [unanimity instruction not required where evidence shows multiple acts in a continuous course of conduct]; cf. People v. Beardslee (1991) 53 Cal.3d 68, 92, 93 [“ ‘[W]here the 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 jury’s understanding of the case.’ ”].)
Here, defendant’s threats were made as part of a continuous course of conduct, namely from when he was escorted by the security guards out of the patient’s room until when he arrived at his van in the parking lot. Stated another way, these threats are closely connected in time and are sufficiently similar in nature. Throughout the incident, defendant yelled, made threats, and talked endlessly. His threats were directed at McKee and Villanueva and were not discrete acts, separated by distinct periods of time, but rather were part of a single transaction—removing defendant from the hospital grounds.
Further, and contrary to defendant’s assertion, the prosecutor’s argument to the jury did not suggest it could find defendant guilty of the crime of criminal threats based on one or more of his threats. Instead the prosecutor’s argument weaved the various threatening statements together. The prosecutor, for example, stated: “And even if [the security guards] were armed[,] this guy is telling them that he’s a three time violent felon from San Quentin and that he knows how to stab people and he’s got a weapon, and he’s showing them how he can use it and he’s telling them how he can use it and he’s telling them he can use it in a manner that could cause great bodily injury or death to them. And he’s telling them he’s going to come back later at a very specific time to the hospital and do them in. And he’s telling them that he’s got something for them and then runs to his car. [¶] Based on the totality of these circumstances I’d ask you to find [defendant] guilty on both counts.” (Italics added.) As reflected in the prosecutor’s remarks, she urged the jury to find defendant guilty on the two counts based on all of the evidence regarding defendant’s threats. Hence, there was no reason for the jury to differentiate between the threats to come to a conclusion defendant made some of the threats but not the others.
Defendant’s reliance on People v. Melhado (1998) 60 Cal.App.4th 1529 and People v. Mayer (2003) 108 Cal.App.4th 403 is unpersuasive. In Melhado, the defendant made criminal threats at 9:00 or 9:30 a.m., left the scene, and returned at 11:00 a.m. and made additional threats. (Id. at p. 1533.) Although the prosecutor informed the court outside the presence of the jury he was relying on the 11:00 a.m. threat, he did not clearly elect that act to the exclusion of the other in closing argument. Because the prosecutor’s election was not clearly communicated to the jury, the appellate court concluded the trial court’s failure to instruct on unanimity was prejudicial error. (Id. at pp. 1535–1536, 1539.) Unlike the present case, Melhado did not concern a continuous course of conduct, and the appellate court did not discuss it. Here, once defendant left the hospital he did not return later that same day to make additional threats.
So too, People v. Mayer, supra, 108 Cal.App.4th 403 has no application to this matter. In Mayer, the court determined the trial court was not required to instruct sua sponte on unanimity as to one count of the indictment for solicitation of perjury. Though the defendant correctly contended the evidence supported two separate acts of solicitation of perjury, one on October 1, 2000, and the other on October 25, 2000, the court found no error because the count only alleged the October 1 act. (Id. at p. 418.) As a result, the jury’s attention was directed to the specific date of the charged offense by the instructions and verdict forms. (Ibid.) In contrast to Mayer, each count of criminal threats here involved different victims, and the evidence adduced at trial supported a continuous course of conduct rather than three discrete acts separated by date or a finite period of time.
Responding to the Attorney General’s assertion a unanimity instruction was not required under the continuous-course-of-conduct exception, defendant draws our attention to selected fragments of a mid-deliberation exchange between the court, the jury foreperson, and Juror No. 10, which he maintains demonstrates the jury “did not view all of [defendant’s] remarks as a continuing course of conduct.”
As background, we delineate the overall relevant exchange between the foreperson, Juror No. 10, and the court, to put defendant’s argument in context. Initially, the foreperson asked for a copy of Villanueva’s testimony. When the court asked for clarification as to what aspect of Villanueva’s testimony was of interest to the jury, the foreperson responded: “We’re trying to figure out where a threat becomes a threat. Is it—does it have to be made as a threat or can it be felt as a threat without having real proof it was made as a threat? In other words, is the burden when the victim feels the threat, when the threat is said.” After the court responded it did not know “how to approach that,” the foreperson provided an example: “We’re working with this thing that some of us find that the threat—there was not and [sic] I’m gonna get you threat. There were these things that you can infer I’m gonna get you from. And it seems we want to see—the reason why we’re asking for the second—the testimony is to see what he said about that threat, because it’s pretty clear from Mr. McKee, I think his name was, he felt threatened. [¶] What about the other guy? And then when does it become a threat? Some are saying it’s intimidation, some are saying it’s a threat, some are saying it’s a distinction without a difference. I was just hoping you’d have some magic words. If, not we’ll just go back and continue.” The court then focused on the “operative parts” of the criminal threats instruction, explaining “that the defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to someone; that the defendant intended that his statement be understood as a threat and intended that it be understood as such; and that the threat actually caused the threatened party to be in sustained fear for his own safety, so that the timing is not so critical. It’s not an element.” After going over the elements of criminal threats, the court sought again to clarify which part of Villanueva’s testimony the jury was interested in reviewing. At this juncture, Juror No. 10 stated: “I personally would like the clarification from when they—his time of leaving the hospital room—or the ER department going up to the van, moving forward from there. Between leaving with [defendant], leaving the hospital and walking through the parking lot up to before they locked down.” The foreperson the went on to state: “This is not the only bone of contention, but if Mr. Villanueva had a clear memory of the defendant threatening to come back I think that would go a long way to helping us clarify.”
After the jury left the courtroom, the trial judge commented: “I think I understand now where they are. They’re focussing [sic] on the count that concerns Mr. Villanueva.” The parties eventually agreed to have Villanueva’s entire testimony reread to the jury.
As noted above, defendant parses the foreperson’s question to support his assertion that the jurors did not view defendant’s threats as a continuing course of conduct. He argues: “In a mid-deliberation exchange between jurors and the trial court, the jury foreperson stated the jurors had a question about when ‘a threat becomes a threat’ and whether a remark can be deemed a ‘threat without having real proof it was made as a threat.’ In this connection, the jury foreperson stated the jurors were grappling with the significance of the evidence of [defendant’s] ‘I’m gonna get you’ remark, and the clarity of the evidence of ‘the defendant threatening to come back.’ ” Defendant maintains these comments “unequivocally demonstrate that the jurors viewed the evidence of [defendant’s] stated intention to return and do in the security guards as distinct from the evidence or remarks concerning the pen.” Likewise, defendant maintains Juror No. 10 focused on events occurring after the security guards and defendant left the hospital building.
We disagree with defendant’s characterization of these remarks, taken out of context, without regard to the entire dialogue between the court and the two jurors. Considering the two jurors’ questions and comments in their entirety, we conclude the jurors were not concerned about any particular statement made by defendant, but were focused on whether defendant’s remarks as a whole were sufficiently serious to constitute threatening conduct and whether Villanueva felt threatened. As the foreperson said, “Some are saying it’s intimidation, some are saying it’s a threat, some are saying it’s a distinction without a difference.”
Defendant also complains the omission of the unanimity instruction was further exacerbated by modifying CALCRIM No. 1300 on criminal threats to read: “The defendant is charged in both Count[s] One and Two with having made a criminal threat or threats in violation of Penal Code section 422.” (Italics added. The italicized language is the language the court added to CALCRIM No. 1300.) Moreover, according to defendant, in describing the elements of the crime, the court instructed the jury that the prosecution was required to prove defendant threatened to kill or cause great bodily harm to both security guards and he did so by making the “threat or threats orally.” (Italics added.)
We reject defendant’s claim. The use of plural “threats” did not confuse the jury or improperly parse the statements made by defendant to the security guards. As explained above, the prosecutor did not break down defendant’s threatening statements into three distinct threats. And to reiterate, defendant’s ongoing threats comprised a continuous course of conduct which, as argued by the prosecutor, “on the totality of these circumstances” (italics added) constituted the crime of making threats to commit a crime against each security guard. Accepting defendant’s argument, moreover, would allow the prosecutor to charge each of a defendant’s threatening statements as a criminal threat even if they were made continuously throughout a single incident, as occurred here.
III. DISPOSITION
The judgment is affirmed.
 





_________________________
Margulies, J.



We concur:


_________________________
Humes, P.J.


_________________________
Dondero, J.





















A148206
People v. Markell