P. v. Zamora

Filed 3/20/07 P. v. Zamora CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Anthony Zamora appeals a judgment after his conviction of driving under the influence with priors and driving with a blood alcohol level of .08 percent with priors (Veh. Code,  23152, subds. (a) & (b); 23550). We conclude, among other things, that the trial court did not commit reversible error by not giving a multiple act unanimity instruction. (CALJIC No. 17.01.) We affirm.

FACTS

Zamora drove a pickup truck into a freeway off ramp median. He then revved the engine and tried unsuccessfully to drive it away from the median.

Lynn Farrington, a prosecution witness, testified that as the driver revved the engine, she saw a woman (Deanne Cunha) "pop out" of the bed of the truck. She then saw a man (Zamora) get out of the driver's side of the truck. Zamora and Cunha then walked away from the scene of the accident.

William Archibald, a California Highway Patrol (CHP) Officer, questioned Zamora. Zamora told Archibald that he was driving and had been involved "in a collision." Archibald noticed that Zamora had an "odor of an alcoholic beverage coming from his person and from his breath."

Sandra Rakestraw, a forensic alcohol toxicologist, testified that she performed a chemical analysis of Zamora's blood which showed a blood alcohol content of 0.12 percent. She said Zamora was "under the influence of intoxicating liquor."

In the defense case, Cunha testified that she drove the truck. She tried to make a turn but the truck "went off the road into the dirt." She said Zamora was sitting "in the passenger side" of the vehicle.

In rebuttal, Ward Sterling, a CHP officer, testified that Cunha told him that she was a passenger and that Zamora was driving the truck.

The Prosecutor's Opening Statement

The prosecutor told jurors that Zamora made "bad choices. That's what this case is about. The defendant made a bad choice . . . when he drove a vehicle while under the influence . . . and while having a blood alcohol level of above .08 percent. The defendant's bad choices . . . continued when he crashed into a median . . . and then fled."

Questions by the Jury

In addition to the two driving while intoxicated counts, the prosecutor charged Zamora with committing hit and run property damage (count 3) and possession of a controlled substance (count 4). The jury acquitted Zamora on count 3. It was unable to reach a verdict on count 4 and the court declared a mistrial as to that count.

During deliberations, the jurors submitted questions to the court. They asked whether driving while intoxicated involves, "the vehicle moving, whether a small distance or large, or if in fact it is based upon the person being in control of the vehicle. What is the minimal point at which someone can be charged with a DUI."

As to the first question, the court responded, "It is based upon the person in control of the vehicle." As to the second, it instructed them to "look at all the instructions with respect to the DUI charge." It identified and referred them to several of its prior instructions.

The jury asked additional questions about "the two charges of the DUI. Can one be true and the other false? Or do both have necessity to be combined[?]" The court responded, "Each charge is a distinct crime. [] You must decide each count separately. The defendant may be found guilty or not guilty of any or all of the crimes charged, and your finding as to each count must be stated in a separate verdict."

The jury asked, "If we decide on 3 counts a verdict, but on the 4th we are undecided, does only the 4th count get thrown out, or does the whole case get hung?" The court responded, "Each count charges a distinct crime, and your verdicts are recorded separately for each count." The jury finally asked, "If the jury is unable to come to agreement on one of the charges, will the other 3 jury verdicts reached still stand, or, will the entire case need to be re-tried?" The court advised them "whether that's true or not is something that should not enter into your deliberations . . . . I want you to consider the evidence and put that question out of your mind."

Zamora did not request the court to give a CALJIC No. 17.01 (Verdict May Be Based on One of a Number of Unlawful Acts) instruction and the court did not give that instruction.

DISCUSSION

I. The Multiple Act Unanimity Instruction CALJIC No. 17.01

Zamora contends that there were two acts from which jurors could reasonably infer that he committed the offense of driving while intoxicated. He claims that the trial court therefore committed reversible error by not instructing the sua sponte multiple act unanimity instruction (CALJIC No. 17.01). We disagree.

CALJIC No. 17.01 states in relevant part, "The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count __ ] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count __ ], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict."

"In a criminal case, a jury verdict must be unanimous. [Citations.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) The general rule is that "'[w]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed . . . that it must unanimously agree . . . that defendant committed the same specific criminal act.' [Citation.]" (People v. Thompson (1995) 36 Cal.App.4th 843, 850.)

Here the trial court gave the standard unanimity instruction which advises jurors that all 12 jurors must agree before they may reach any verdict. Zamora contends that was insufficient because there were two acts which supported a conviction of driving while intoxicated: 1) driving until the "truck skidded onto the median," and 2) revving the engine after the impact "to get [the truck] unstuck from the median."

The Attorney General responds that even if there were two acts, there was no error by not giving the CALJIC No. 17.01 unanimity instruction because the prosecutor made an election. The Attorney General is correct. The prosecutor told jurors that the driving while intoxicated offenses occurred when Zamora drove and then crashed into a median. The act of revving the engine after the crash was not part of the prosecution's theory about what constituted driving while intoxicated.

But even absent an election, the result does not change. "A unanimity instruction is not required where the offenses are so closely connected to form a single transaction or where the offense itself consists of a continuous course of conduct. [Citation]" (People v. Thompson, supra, 36 Cal.App.4th at p. 851.) The offense here involves driving while intoxicated. "Driving while intoxicated is a continuing offense, and evidence of its commission at different times within the general charge does not demand an election." (People v. Knight (1939) 35 Cal.App.2d 472, 474; see also People v. Thompson, at p. 851.)

Zamora's act of driving into the median and then immediately trying to drive away is also so closely connected as to constitute one transaction. Moreover, "'[t]he "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. . . .' [Citation.]" (People v. Thompson, supra, 36 Cal.App.4th at p. 851.) That is the case here. Zamora's defense was that he was not driving at any time, Cunha was the driver at all relevant times. At trial, Zamora did not claim that there were different drivers before and after the vehicle hit the median, and there is no evidence from which a reasonable juror could draw such an inference. Farrington testified she went to her window "right away" after she heard the "squealing brakes and impact."

Moreover, "[w]here the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.]" (People v. Thompson, supra, 36 Cal.App.4th at p. 853.) That is the case here. Zamora's counsel told jurors that the case involved a credibility contest between Cunha and the prosecution's witnesses. It was a categorical choice for them, if they believed Cunha they must acquit Zamora. But the jury rejected Cunha's testimony. Had jurors believed her, they would have acquitted Zamora. But Cunha was not credible. She testified she was driving, but she was impeached because she told Sterling that Zamora was the driver. In addition, Archibald testified that Cunha said she "was the right-front passenger," and never said that she was driving. Cunha had a history of committing crimes involving dishonesty. She had a felony conviction for forgery and a misdemeanor theft conviction.

The evidence of Zamora's guilt is overwhelming. Zamora admitted to Archibald that he drove the vehicle. Rakestraw's testimony showed that he was under the influence. Farrington's testimony also refuted the defense case. She saw Cunha "pop out" of the bed of the truck while the driver revved the vehicle. She then saw Zamora get out from the driver's side.

II. TheResponse to the Jury's Questions

Zamora claims that when the jury asked questions about the instructions the court erred by not giving CALJIC No. 17.01 at that time. We disagree.

Where the court has properly instructed the jury and jurors have questions about the instructions "the court has discretion . . . to determine what additional explanations are sufficient . . . ." (People v.Beardslee (1991) 53 Cal.3d 68, 97.) Here there was no abuse of discretion. Jurors asked questions about the substance and independence of the various counts. The court responded to each of the jury's questions. It properly advised them that each count must be decided independently and based on the evidence in the record. Zamora has not challenged the responses the court gave.

He argues that the court should have included the CALJIC No. 17.01 instruction sua sponte. But the jury did not ask whether striking the median followed by revving of the vehicle constituted one or two separate offenses, and it is the "defendant's obligation to request any clarifying or amplifying instruction . . . ." (People v. Kimble (1988) 44 Cal.3d 480, 503.) Zamora did not request the CALJIC No. 17.01 instruction or any further amplifying instructions. He apparently was satisfied with the standard unanimity instruction which the court had given to the jury.

Moreover, for the reasons mentioned in point I, the trial court did not err by not giving CALJIC No. 17.01 on its own motion. But even if it erred, the error is harmless because of the overwhelming evidence of Zamora's guilt. (People v. Thompson, supra, 36 Cal.App.4th at p. 853.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Charles S. Crandall, Judge

Superior Court County of San Luis Obispo

______________________________

Barbara A. Landan, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Daniel C. Chang, Deputy Attorney General, for Plaintiff and Respondent.

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