P. v. ONeal
A jury convicted defendant Charles ONeal of false imprisonment, assault by means of force likely to produce great bodily injury, infliction of corporal injury upon a cohabitant, and removal of a cellular telephone to prevent a call for police assistance. (Pen. Code, 236, 245, subd. (a)(1), 273.5, 591.5 [all further section references are to this code].) The court sentenced defendant to an aggregate prison term of five years, eight months: four years for infliction of corporal injury upon a cohabitant; one year for assault; eight months for false imprisonment; and a concurrent 180-day jail term for removal of a cellular telephone.
Defendant claims three instances of instructional error: (1) failure to define assault for the jury; (2) failure to instruct on misdemeanor battery against a cohabitant as a lesser included offense of felony infliction of injury upon a cohabitant; and (3) failure to instruct the jury that it had to agree unanimously on the act constituting false imprisonment. Defendant also claims, in a petition for rehearing we granted, that he was wrongly denied a jury trial on facts used by the trial court to sentence him to an upper term of four years for infliction of corporal injury upon a cohabitant.
The courts failure to instruct the jury on the definition of assault was error, as the People concede. However, we find the error harmless because the factual question posed by the omitted assault instruction (whether defendant threatened physical force) was resolved adversely to defendant under other properly given instructions when the jury found defendant guilty of inflicting corporal injury (applying physical force) upon a cohabitant. We find no error in the courts decision not to instruct on a lesser included offense of simple battery without injury because uncontroverted evidence established that the victim suffered injury. We conclude that no unanimity instruction was required because the false imprisonment was not a series of discrete acts but a continuous course of conduct. Finally, we reject defendants claim of sentencing error because imposition of the upper term was based on the fact of a prior conviction, and determination of that fact need not be submitted to a jury. Accordingly, Court affirm the judgment.
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