Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD204318, George W. Clarke, Judge.
McDONALD, J.
Milo Lareese Oliver appeals a judgment following his jury conviction of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), assault while on public transportation (Pen. Code, § 241.3, subd. (a)), and resisting a public officer (§ 148, subd. (a)(1)). On appeal, Oliver contends the trial court erred by: (1) not stating on the record its reasons for imposing the middle term for his possession offense; and (2) not instructing on the juror unanimity required regarding the same act that constituted the assault offense.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
At about 8:30 p.m., Debra Malley was riding on the San Diego trolley. She saw Oliver board the trolley. He was "bouncing off the walls" and talking to himself. When he attempted to sit in a vacant seat across from her, she told him to sit somewhere else and placed her feet on the seat. Oliver struck Malley's legs with his fist, knocking them off the seat. Oliver and Malley began arguing. Another passenger informed trolley inspector officer Mary Mustacchio of the situation.
When Mustacchio approached, Malley asked her to get Oliver away from her. Mustacchio asked Oliver to move to another seat, but he refused. Mustacchio grabbed his shoulder and demanded he move. Oliver swung at her, apparently striking her upper body. Oliver stood up and threw a 20-ounce glass bottle at her, striking her on the right thigh. He then charged Mustacchio, causing her to fall backward against a wall. Mustacchio called for her partner, Victor Garcia, for assistance.
Garcia knocked Oliver to the ground. Mustacchio and Garcia asked him to place his hands behind his back. After initially struggling, he complied and was handcuffed. After removing Oliver from the trolley, they searched him and found 5.7 grams of cocaine base in his jacket pocket.
An information charged Oliver with possession of a controlled substance for sale (Health & Saf. Code, § 11351.5), assault while on public transportation (§ 241.3, subd. (a)), and resisting a public officer (§ 148, subd. (a)(1)). The jury found Oliver guilty of the lesser included offense of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and guilty of the other two counts. The trial court imposed the middle two-year prison term for the possession offense. Oliver timely filed a notice of appeal.
DISCUSSION
I
Imposition of Middle Two-Year Term
Oliver contends the trial court erred by not stating its reasons for imposing the middle two-year prison term for his conviction for possession of a controlled substance. Effective March 30, 2007, section 1170, subdivision (b), was amended to require a trial court to state its reasons for imposing a lower, middle, or upper term. (People v. Velasquez (2007) 152 Cal.App.4th 1503, 1511, fn. 4.) That statute now provides: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . ." (Italics added.)
Prior to its amendment, section 1170, subdivision (b), provided in pertinent part: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. . . . The court shall set forth on the record the facts and reasons for imposing the upper or lower term. . . ." (Italics added.)
At Oliver's sentencing hearing on June 14, 2007, the trial court did not state its reasons for imposing the middle two-year term for Oliver's possession offense. However, Oliver did not object to the court's failure to state those reasons. By not objecting to the trial court's sentencing choice and the court not stating reasons for that choice, Oliver waived, or forfeited, his claim on appeal that the trial court erred by not stating its reasons for imposing the middle term. (People v. Velasquez, supra, 152 Cal.App.4th at pp. 1511-1512; People v. Scott (1994) 9 Cal.4th 331, 353; People v. Zuniga (1996) 46 Cal.App.4th 81, 84.) Scott stated:
"[T]he waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (People v. Scott, supra, 9 Cal.4th at p. 353, italics added.)
We conclude Oliver has waived or forfeited his appellate contention that the trial court erred by not stating its reasons for imposing the middle term for his possession offense.
Although Oliver concedes he did not object to the trial court not stating reasons for its imposition of the middle term, he argues (for the first time in his reply brief) the court's sentence must nevertheless be reversed and remanded for resentencing because the record shows the court did not exercise its discretion to impose a term other than the middle term. "[A] ruling otherwise within the trial court's power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. [Citations.]" (People v. Penoli (1996) 46 Cal.App.4th 298, 302.) "Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal. [Citations.]" (Id. at p. 306.) However, the record in this case does not show the trial court was unaware it had discretion to impose a lower, middle, or upper term. At the sentencing hearing, the court stated it had reviewed the probation report. That probation report stated the court's sentencing alternatives for Oliver's possession offense were 16 months, two years, or three years. That report further stated: "Although the circumstances in aggravation outweigh those in mitigation, this officer does not find them compelling enough to cause deviation from the presumptive middle term." Although the probation report erroneously referred to the middle term as the presumptive term, we cannot attribute that erroneous understanding to the trial court. Rather, based on the record, we conclude the trial court understood it had discretion to impose the lower, middle, or upper term and that none of those terms was the presumptive term.
Absent any express showing in the record to the contrary, we presume the court was aware of the amendments to section 1170, subdivision (b), effective March 30, 2007 (over two months prior to the sentencing hearing), and therefore knew it had discretion to impose the lower, middle, or upper term. We conclude Oliver cannot challenge on appeal the middle term imposed by the trial court for his possession offense.
II
Unanimity Instruction
Oliver contends the trial court erred by not instructing on the juror unanimity required regarding the same act that constituted the assault offense.
Although in his opening brief Oliver also argued the trial court erred by not instructing on juror unanimity regarding his offense of resisting a public officer, in his reply brief he concedes the trial court did, in fact, so instruct on unanimity regarding that offense and therefore withdraws that argument.
A
"In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the 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.) "This requirement of unanimity as to the criminal act '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.' [Citation.]" (Ibid.)
However, there is an exception to that rule and "no unanimity instruction is required where the [arguably separate] acts proved constitute a continuous course of conduct. [Citation.]" (People v. Napoles (2002) 104 Cal.App.4th 108, 115, citing People v. Diedrich (1982) 31 Cal.3d 263, 282.) "The unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The '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. Stankewitz (1990) 51 Cal.3d 72, 100.) "The continuous course of conduct exception arises in two contexts. [Citations.] 'The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time. [Citation.]' [Citation.]" (People v. Jenkins (1994) 29 Cal.App.4th 287, 299.) Regarding the first type of continuous course of conduct, "when the acts are so closely connected in time as to form part of one transaction," no unanimity instruction is required. (People v. Crandell (1988) 46 Cal.3d 833, 875, italics added, overruled on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365; see also People v. Diedrich, supra, at p. 282; People v. Haynes (1998) 61 Cal.App.4th 1282, 1295.)
B
Although the trial court did not instruct on the unanimity requirement as to the assault charge, we conclude the various acts alleged by the prosecutor as constituting the assault were so closely connected in time as to form part of one transaction and thus one offense. As Oliver notes, the prosecutor argued that the evidence showed he swung at Mustacchio with his fist, rushed toward her, and fell on her. The prosecutor also argued Oliver hit Mustacchio several times. However, the prosecutor did not elect among those acts as the basis for the assault charge. Furthermore, as described above, the record also shows Malley and/or Mustacchio testified how Oliver initially swung at Mustacchio, threw a glass bottle at her, and then charged her. According to Malley, the struggle between Oliver and Mustacchio "went pretty fast."
Based on the record, it can only be reasonably inferred that the entire incident between Oliver and Mustacchio lasted, at most, a few minutes. Based on the witnesses' description of events, there was a quick succession of acts in which Oliver assaulted Mustacchio. There was no significant separation of Oliver's acts in time or place or by any intervening act. The violent nature of Oliver's acts did not make them separate transactions or offenses "any more than it would be true there are separate crimes of battery if the actor throws a right-hand punch to his victim and immediately follows it with a left-hand punch. Similarly, if only one punch lands on the victim, the law does not require the jury to agree on whether it was the right or the left-hand punch which reached its mark." (People v. McIntyre (1981) 115 Cal.App.3d 899, 910.) A number of cases have held that if a defendant's acts occur within a short period of time (e.g., a few minutes), those acts are so closely connected as to form only one transaction and thus one offense. (People v. Curry (2007) 158 Cal.App.4th 766, 782-783; People v. Percelle (2005) 126 Cal.App.4th 164, 182 [acts separated by one hour]; People v. Haynes, supra, 61 Cal.App.4th at p. 1296 [acts "were just minutes and blocks apart and involved the same property"]; People v. McIntyre, supra, at p. 910 [two acts of oral copulation "within a few minutes"]; People v. Mota (1981) 115 Cal.App.3d 227, 233 [acts committed over course of one hour]; People v. Epps (1981) 122 Cal.App.3d 691, 702 ["[s]eparate acts may also result in but one crime if they occur within a relatively short time span"].) Oliver does not cite any apposite case to the contrary. Based on the record in this case, Oliver's acts against Mustacchio that he argues could have constituted his assault while on public transportation were so closely connected in time and place as to constitute only one transaction and offense. Because Oliver "offer[ed] essentially the same defense to each of the acts [i.e., the acts did not happen], and there [was] no reasonable basis for the jury to distinguish between them" (People v. Stankewitz, supra, 51 Cal.3d at p. 100), we conclude the trial court did not err by not instructing on unanimity regarding the assault charge.
Even assuming the trial court erred by not so instructing, we would nevertheless conclude the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18. In this case, the record provided no basis for the jury to distinguish between the various acts such that the jury must have believed Oliver committed all of those acts, if he committed any of them. (People v. Deletto (1983) 147 Cal.App.3d 458, 473; People v. Riel (2000) 22 Cal.4th 1153, 1199.) Because on this record the jury resolved the basic credibility dispute against Oliver and would have convicted him of any of the various assaults shown by the evidence, the failure to give the unanimity instruction was harmless beyond a reasonable doubt. (People v. Jones (1990) 51 Cal.3d 294, 307; People v. Thompson (1995) 36 Cal.App.4th 843, 853.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.