Opinion
B188821
4-30-2007
THE PEOPLE, Plaintiff and Respondent, v. FABIAN HANCEY MICHEL, Defendant and Appellant
Lisa M. Bassis, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Appellant Fabian Hancey Michel challenges his assault with a deadly weapon conviction on the ground the trial court failed to instruct, sua sponte, on juror unanimity. Because the various acts by appellant that could constitute assault were parts of a continuous transaction, we conclude no unanimity instruction was required.
BACKGROUND AND PROCEDURAL HISTORY
Appellant displayed a knife to Gevorg Vardanyan, who had refused appellants demand for 50 cents. Vardanyan returned to the store where he was working, and appellant followed him. Vardanyan gave appellant 50 cents from the cash register, but refused appellants demand for more money. Appellant displayed the knife again and threw a coffee maker to the ground. Appellant swung a knife at Vardanyan, who swung a hammer at appellant. Appellant and his friend left the store, but soon returned. The police arrived and arrested appellant.
A jury convicted appellant of assault with a deadly weapon, but could not reach a verdict on a charge of attempted robbery. The trial court ultimately dismissed the attempted robbery charge and sentenced appellant to prison for three years.
DISCUSSION
Appellant contends that the trial court was required to instruct upon juror unanimity because the evidence showed two or three separate assaults, but only one assault was charged.
Vardanyan testified that on August 20, 2005, he was working at his cousin Albert Zharazhyans tobacco shop in a mini-mall. He went to a Burger King in the same mini-mall to purchase water. After he paid for the water, Vardanyan noticed appellant was standing next to him. Appellant asked him for 50 cents, and Vardanyan refused. Vardanyan walked toward the tobacco shop, and appellant stood in the hallway, cursing him. Vardanyan asked appellant what his problem was. Appellant opened up a folding knife and said, "Ill take care of you outside." Vardanyan continued to walk to the tobacco shop.
A couple of minutes later, appellant and a companion entered the tobacco shop and asked for money. Vardanyan, who was behind the counter, gave appellant 50 cents from the cash register. When appellant asked for more money, Vardanyan said he did not have "it." Appellant opened the knife again and said, "You better have it" and cursed again. Appellant was screaming. Vardanyan told appellant he did not want any trouble. Appellant threw a coffee maker on the ground, breaking it. Zharazhyan struck appellant. Vardanyan grabbed a hammer to protect himself. Appellant began swinging the knife from side to side in front of him. Vardanyan swung the hammer at appellant, and tried to stay out of range of the knife. The hammer never made contact with appellant. Appellants companion fought with Zharazhyan, who was near the door to the shop. Zharazhyan told Vardanyan to get behind the corner because the men had a gun. Vardanyan dropped to the floor for three or five seconds. When he got up, appellant was back out in the mini-mall, his companion was halfway out of the tobacco shop door, and the police had arrived.
Henry Angon testified that he was at the Subway restaurant near the tobacco shop when he heard a commotion. He saw appellant confronting a man in the eating area outside of Subway. Angon thought the man worked at the tobacco shop. Appellant said he was not afraid of the man, cursed at him, and urged him to "come on, come on." Appellant took off his shirt. They were about five feet apart and were arguing. The man from the tobacco shop was telling appellant to leave. Angon did not see anything in appellants hands at that time. Angon turned back to the counter to order food. He then saw appellant standing with a companion in the same eating area. Appellants companion said, "Lets go. Just forget it. Lets go, get out of here." They walked out to the parking lot, but came back inside a minute or two later. They both went up to the tobacco shop. Appellant had a knife in his hand and was "swiping" it at the store employee in a threatening manner. The store employee picked up a chair and used it to fend of appellant. Appellant "threw down" a metal stand or rack in the store. Angon did not see appellants companion fighting with anyone. The first confrontation lasted about five to seven minutes, and the second one was four or five minutes long.
The preliminary hearing testimony of Zharazhyan, who died prior to the trial, was read to the jury. He testified that appellant came into the tobacco shop and demanded money. Vardanyan told appellant they did not have money. Appellant said, "You better have it," and began cursing and "breaking the store." Appellant was holding a knife. Zharazhyan punched appellants face. Appellant broke the coffee machine. Another man was with appellant, and that man hit Zharazhyan on the head with a one-gallon water bottle. Appellant tried to strike Zharazhyan with the knife. Zharazhyan called 911. Appellant and his companion left, then came back. At some point, appellants companion pointed a gun at Zharazhyan.
Appellant was only charged with assaulting Vardanyan.
Ray Brown testified for the defense. He had known appellant for about 6 months at the time of trial. On August 20, 2005, he went to the mini-mall and saw appellant and another man "pushing back and forth" in front of the Subway restaurant. Brown watched for two or three minutes, and then left to buy cigarettes at a store up the street because the owner of the tobacco store in the mini-mall was fighting. When Brown returned, they were still fighting. The owner of the tobacco store pulled out a hammer, and a "white dude" near appellant drew a knife. Appellant was not armed. At some point, appellant and his companion left and went half-way to the parking lot, then appellant ran back and threw a water jug at the store owner, who pulled the hammer again, and they continued to fight. Brown saw the police put the knife with appellants property after they arrested him.
The police recovered lighters that were replicas of .22-caliber revolvers from appellant and his companion and a folding knife from appellants companion.
When a defendant is charged with a single criminal act but the evidence shows more than one such act, the court is required to instruct the jurors that they must unanimously agree that defendant committed the same specific criminal act. (People v. Brown (1996) 42 Cal.App.4th 1493, 1499.) No unanimity instruction is required where the several acts are so closely connected that they are parts of the same transaction or where the offense itself consists of a continuous course of conduct. (People v. Jenkins (1994) 29 Cal.App.4th 287, 299; People v. Avina (1993) 14 Cal.App.4th 1303, 1309.) The "continuous conduct" rule applies when the defendant offers the same defense or defenses to each act and there is no reasonable basis for the jury to distinguish between them. (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
Some of the testimony at trial indicated that the confrontation between Vardanyan and appellant temporarily abated once or twice, for as much as "a couple of minutes." However, the subsequent portions of the confrontation stemmed from the initial encounter at the Burger King. In both the first and second segments of the confrontation, appellant demanded money from Vardanyan, displayed a knife, and made hostile statements. Appellants hostility and violent behavior in all phases of the confrontation were directed against the same victim. All portions of the confrontation occurred within a short distance of one another, and in the same general area in the same mini-mall. Given the common source and characteristics of the confrontations and the brevity of the interludes, all of appellants assaultive acts were part of a continuous transaction. The theory of the defense was that appellant did not have or use a knife, and the testimony of Vardanyan and other witnesses that appellant had a knife was implausible and false. The only difference in the defense theory with regard to the different phases of the confrontation was that additional things were said by Vardanyan as the confrontation evolved. However, Vardanyans statements did not constitute a defense for appellant, and the jury was so instructed. Accordingly, appellant offered the same defense to each assaultive act and there was no reasonable basis for the jury to distinguish between them.
Moreover, failure to give a unanimity instruction is governed by the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24, i.e., whether the error was harmless beyond a reasonable doubt. (People v. Thompson (1995) 36 Cal.App.4th 843, 853.) "In order for the unanimity instruction to be significant, there must be evidence from which reasonable jurors could both accept and reject the occurrence of at least the same number of acts as there are charged crimes." (People v. Schultz (1987) 192 Cal.App.3d 535, 540.) Where 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. (People v. Thompson, supra, 36 Cal.App.4th at p. 853.)
There is a split of authority on the proper standard for analyzing the erroneous failure to instruct upon unanimity. (People v. Vargas (2001) 91 Cal.App.4th 506, 561-562.)
It is clear the jury rejected appellants theory that his companion was the person who had the knife. "This is not a case in which different witnesses testified as to one incident but not the other or where different items of real evidence were introduced to prove one act but not the other, so that the jury might have distinguished between the credibility of different witnesses or the weight to be given various items of real evidence." (People v. Deletto (1983) 147 Cal.App.3d 458, 466.) "Nor is this a case in which the recollection of any prosecution witness is better with respect to one incident than the other." (Ibid.) Nor did any other evidence focus on one act but not the other. (Id. at p. 467.) Accordingly, there was no possibility that some jurors believed appellant committed one assaultive act but not another, while others believed he committed a different assaultive act, or some jurors believed appellants defense with respect to one act but not another. Accordingly, any error in failing to give a unanimity instruction was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
We concur:
COOPER, P. J.
RUBIN, J.