Filed 12/12/18 P. v. Lindsey CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Regjuan Donnell Lindsey of false imprisonment, making criminal threats, unlawful possession of a firearm, and burglary. The trial court sentenced him to four years eight months in prison.

Defendant now contends the trial court had a sua sponte duty to give a unanimity instruction regarding the criminal threats charge. Finding no error, we will affirm the judgment.

BACKGROUND

Defendant lived in Yuba City with S. and their infant daughter. In July 2017 defendant and S. were at the home of T. and her mother N. Defendant wanted to leave, but S. did not; defendant threatened to beat her if she refused.

Defendant and T. argued and T. locked the bedroom door on him. Defendant demanded to be let in, said he would “kick the door,” and threatened to shoot through the door if not let in. He told S. again that they needed to leave. Defendant went outside, opened the bedroom window, pointed a gun at S., and said if she refused to leave he would shoot her. S. got ready to leave with defendant, fearing that he would harm her if she refused.

As S. and defendant walked out of the house, T. saw a handgun in defendant’s hand. When S. hesitated in the driveway, defendant threatened to shoot her brother unless she left with defendant immediately. S. agreed to go with defendant and they walked away together. About 10 minutes had elapsed since T. had locked defendant out of the bedroom.

The jury also heard evidence of defendant’s prior acts of domestic violence. Defendant did not testify or present evidence.

During the instructions conference, neither counsel requested any instructions as to criminal threats other than the standard instruction on that offense (CALCRIM No. 1300).

Regarding the criminal threats charge, the prosecutor told the jury: “So you heard a couple of different things regarding T[.]’s statement that [defendant] was yelling through the door that he’s going to shoot through the door, that while he was pointing the gun at her head he was saying he was going to shoot her in the head if she does not leave with her [sic]. Those are criminal threats. Those are the reasons that S[.] actually left with him because she knows what he’s capable of and she didn’t want a problem. She didn’t want to deal with it so she went with him. [¶] There was also testimony about S[.] saying that her brother was going to actually come there and get her, and they were waiting for him, but they decided to leave and get out of there before he actually showed up. [¶] In T[.]’s statement to law enforcement, she stated when she got to the end of the driveway that S[.] was wavering, saying she did not want to go, but then [defendant] made a statement that he was going to shoot her brother if he showed up. And then they decided to leave at that time because she didn’t want any problems again. [¶] So he’s now threatening her family as well. And there’s evidence that he was actually on his way there. S[.] even came up on that to you. [Sic.] [¶] Again, there’s a personal use allegation that while he was making these threats that he was personally using a firearm in a menacing manner.”

Defense counsel argued that T. was the only witness who had provided evidence as to all the charged offenses, and she was not credible.

The jury convicted defendant of false imprisonment, a lesser included offense of kidnapping (Pen. Code, § 237, subd. (a) -- count 1);[1] making criminal threats (§ 422 -- count 3); unlawful possession of a firearm (§ 29815 -- count 4); and burglary (§ 459 -- count 5). The jury hung on the charge of assault with a firearm (§ 245, subd. (a)(2) -- count 2) and on alleged firearm enhancements; the trial court dismissed those charges in the interests of justice. The trial court imposed an aggregate state prison sentence of four years eight months, consisting of the following: a four-year middle term on count 5; eight months consecutive on count 4; and concurrent two-year terms on counts 1 and 3, stayed pursuant to section 654.

DISCUSSION

Defendant contends the trial court had a sua sponte duty to give a unanimity instruction regarding the criminal threats charge, because the evidence suggested at least three criminal threats and the prosecutor failed to elect one of them. We disagree. No such instruction was required because defendant’s threats formed a continuous course of conduct.

“[T]he jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases 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.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132, italics omitted.) Where the evidence justifies a unanimity instruction, the trial court must give it even without a request. (People v. Riel (2000) 22 Cal.4th 1153, 1199; People v. Datt (2010) 185 Cal.App.4th 942, 951.)

“There are, however, several exceptions to this rule. For example, no unanimity instruction is required 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 statute 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. [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings); accord, People v. Williams (2013) 56 Cal.4th 630, 682 (Williams).)

Here, defendant’s threats to shoot S. and her brother occurred within a 10-minute time frame, and all were made in or just outside T.’s home as part of a single transaction: defendant’s attempt to force S. to come with him against her will. Thus, this case falls within the first type of fact pattern invoking the continuous-course-of-conduct exception, where “ ‘the acts are so closely connected in time as to form part of one transaction’ ” (Jennings, supra, 50 Cal.4th at p. 679; see Williams, supra, 56 Cal.4th at p. 682.) Furthermore, defendant offered the same defense to all of them: asking the jury to disbelieve T.’s account of his conduct. For both reasons, a unanimity instruction was not required. (Williams, at p. 682; Jennings, at p. 679.)

Defendant summarily asserts that the continuous-course-of-conduct exception does not apply to the section 422 offense of making criminal threats, citing People v. Salvato (1991) 234 Cal.App.3d 872, 883. But Salvato was decided long before Jennings and Williams and did not address acts closely connected in time or crimes involving the same defense. Defendant’s assertion is forfeited because he does not support it with discussion or analysis and he does not explain why we should follow Salvato in this context.

Defendant’s acts constituted a continuous course of conduct, and the trial court did not have a sua sponte duty to give a unanimity instruction.

DISPOSITION

The judgment is affirmed.

/S/

MAURO, J.

We concur:

/S/

HULL, Acting P. J.

/S/

MURRAY, J.