Opinion
E067153
02-21-2018
THE PEOPLE, Plaintiff and Respondent, v. CODY ROSS STONE VANCAMP, Defendant and Appellant.
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR032272) OPINION APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda, Judge. Affirmed. Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Cody Ross Stone Vancamp appeals from his convictions for felony simple assault, a lesser included offense of assault with a deadly weapon, which the court reduced to misdemeanor battery at sentencing, and misdemeanor vandalism. The victim told a deputy sheriff that defendant struck her with his hands multiple times, hit her in the face with a flashlight, and pushed her onto the floorboard of her vehicle and held her there. Defendant argues the trial court erred by not instructing the jury, sua sponte, that it had to unanimously decide which of the above acts constituted simple assault. In addition, defendant argues his trial attorney rendered constitutionally ineffective assistance of counsel by not requesting the trial court give a unanimity instruction to the jury.
We find no error. The various hits and pushes to the victim were part of a continuous course of conduct, so the trial court was not required to give a unanimity instruction to the jury. Even if we were to conclude the trial court erred, it was harmless beyond a reasonable doubt. The jury acquitted defendant of the greater charges of kidnapping, inflicting corporal injury on a cohabitant, and false imprisonment. The jury clearly agreed—unanimously—that defendant hitting the victim with his hands constituted the crime of simple assault, a lesser included offense of assault with a deadly weapon. Finally, defendant's claim of ineffective assistance of counsel lacks any merit whatsoever because his trial attorney did, in fact, request that the trial court give a unanimity instruction. We affirm.
I.
FACTS
In a second amended information, the People charged defendant with kidnapping (Pen. Code, § 207, subd. (a), count 1), assault with a deadly weapon, to wit, a flashlight (Pen. Code, § 245, subd. (a)(1), count 2), inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a), count 3), false imprisonment (Pen. Code, § 236, count 4), and misdemeanor vandalism (Pen. Code, § 594, subd. (a), count 5). The People alleged defendant suffered a prior serious or violent felony conviction (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(1)), and a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)).
A deputy with the San Bernardino County Sheriff's Department testified he responded to the emergency room and spoke to the victim and her parents. The victim appeared to be "shaken up," reserved, and "a little bit emotional." The expression on the victim's face, and the way she was rubbing her face, neck and head, left the deputy with the impression that the victim was in pain. The deputy testified it did not appear anything was stopping the victim from giving a full statement. A recorded portion of the deputy's interview with the victim was played for the jury, and an edited transcript was admitted into evidence and provided to the jurors.
The victim told the deputy she and defendant had been staying at the home of someone defendant knew for about a week, but defendant wanted to leave because the house was disgusting. The victim no longer wanted to stay there either. However, when the victim told defendant she wanted to leave the house, he got mad at her because she was "leaving him stranded." The victim said defendant had a big flashlight in his pocket. Defendant hit the victim "over five times" on the left side of her face while she was inside her vehicle. Defendant hit the victim once with the flashlight, and the rest of the hits were with his hands. He then held the victim down on the floorboard of the vehicle.
The victim said she had "lumps" on her head, and her head hurt "pretty bad" from "ear to ear." She also said she had back pain, but that her "jaw hurts the most." The victim also told the deputy it felt like her jaw had been fractured because "it hurts really bad," and she "couldn't even eat." The victim said defendant had never done anything like that to her before, and said defendant might have been set off because he was on drugs at the time. She believed defendant used the flashlight to break the rear left window of her vehicle while she was on the floorboard. The deputy did not observe "major bruising" on the victim, but she had bruises and scratches.
Based on information from the victim, another deputy went to a location where it was believed defendant might have been sleeping inside his truck. The deputy found the truck, but defendant was not inside. After obtaining consent from the owner of the property to conduct a search, the deputy searched the entire property and the truck. Defendant was not found anywhere on the property. However, inside the truck, the deputy found a large, black flashlight on the floorboard. The flashlight was roughly a foot long and weighed between three to six pounds.
At trial, the victim testified she was the one who hit defendant first, not the other way around. Defendant merely tried to restrain and stop her from hitting him by pushing and holding her down on the floorboard. The victim struggled to get loose and swung at defendant. Defendant hit the victim's vehicle with his fist 10 to 15 times and shattered the window.
A month after the incident, the victim wrote a letter, witnessed by defendant's then girlfriend, in which the victim retracted her statement to the deputy. The victim gave the letter to defendant. The victim testified not everything in the letter was true and accurate, and that she was under the influence when she wrote it. The victim admitted she had told the deputy that: defendant hit her over five times, including once with a large flashlight; he held her down on the floorboard; he broke the window to her vehicle with the flashlight; and her back, head, and jaw hurt. The victim testified that, except for a few moments, her parents were present during the interview with the deputy. The victim denied that defendant or his father had threatened her or convinced her to change her story.
On cross-examination, the victim testified she lied to the deputy because her father, who had never liked defendant, had intimidated her, and because she was still mad at defendant when she spoke to the deputy. She was not lying when she testified that she hit defendant, and he was merely defending himself. The victim said she would have testified the same way even if the People had not offered her immunity from prosecution, and even if it meant she would have gotten into trouble. An investigator with the public defender's office testified that he interviewed the victim, and that her testimony was consistent with her statements during the interview.
The jury acquitted defendant of kidnapping, inflicting corporal injury on a cohabitant, and false imprisonment, as alleged in counts 1, 3 and 4. The jury found defendant guilty of simple assault, a lesser included offense of assault with a deadly weapon, as alleged in count 2, and found him guilty of misdemeanor vandalism, as alleged in count 5. The trial court dismissed the allegations that defendant suffered a prior serious felony conviction and a prior serious and violent felony conviction. The court reduced defendant's conviction for simple assault to misdemeanor battery and sentenced defendant to "summary," or unsupervised, probation for three years.
Defendant timely appealed.
II.
DISCUSSION
"In California, a jury verdict in a criminal case must be unanimous. (People v. Collins (1976) 17 Cal.3d 687, 693 . . . citing Cal. Const., art. I, § 16.) Thus, our Constitution requires that each individual juror be convinced, beyond a reasonable doubt, that the defendant committed the specific offense he is charged with. [Citations.] Therefore, when the evidence suggests more than one discrete crime, either (1) the prosecution must elect among the crimes or (2) the trial court must instruct the jury that it must unanimously agree that the defendant committed the same criminal act. [Citations.] The unanimity instruction must be given sua sponte, even in the absence of a defense request to give the instruction. [Citations.]" (People v. Hernandez (2013) 217 Cal.App.4th 559, 569 (Hernandez).)
"The importance of the unanimity instruction is rooted in the Fourteenth Amendment to the United States Constitution's requirement that all criminal defendants are afforded due process of law. The failure to give a unanimity instruction 'has the effect of lowering the prosecution's burden of proof.' (People v. Wolfe (2003) 114 Cal.App.4th 177, 186 . . . .) Accordingly, a failure to give the instruction when it is warranted abridges the defendant's right to due process, as it runs the risk of a conviction when there is not proof beyond a reasonable doubt." (Hernandez, supra, 217 Cal.App.4th at p. 570.)
"In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. [Citation.] In the first situation, but not the second, it should give the unanimity instruction. [Citation.]" (Hernandez, supra, 217 Cal.App.4th at p. 570.)
As this court recognized in Hernandez, there is an exception to the requirement of a unanimity instruction when the multiple acts which constitute the offense are part of a continuous course of conduct. "The continuous course of conduct exception arises in two contexts. [Citation.] '"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.] . . . [¶] The first facet of the exception holds that a unanimity instruction is not '"required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct,"' or '"'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.' [Citations.]" [Citation.]' [Citations.] The justification for the exception is that there is no need for an instruction when there is a single course of conduct because members of the jury cannot distinguish between the separate acts. Further, the instruction is unnecessary when the defendant proffers the same defense to multiple acts because a guilty verdict indicates that the jury rejected the defendant's defense in toto. [Citation.]" (Hernandez, supra, 217 Cal.App.4th at p. 572, fn. omitted.)
The People contend each of the "hits" to the victim (with the flashlight and defendant's hands), and defendant's act of pushing the victim onto the floorboard, constitute a continuing course of conduct. We agree. In her statement to the deputy, the victim said defendant hit her "over five times" on the left side of her face, once with a flashlight and the rest of the times with his hands, then pushed her down and held her on the floorboard of her vehicle. As we noted in Hernandez, the continuing course of conduct exception applies "when the same actor performs the same type of conduct at the same place within a short period of time, such that a jury cannot reasonably distinguish different instances of conduct." (Hernandez, supra, 217 Cal.App.4th at p. 573.) The victim's statement to the deputy, if believed in toto, showed defendant's acts occurred in a confined space and during a very compressed period of time. A jury reasonably could not have distinguished between the acts and, therefore, conclude those acts in their entirety constituted simple assault.
We disagree, however, with the People's assertion that defendant presented the same defense to each alleged act. Defendant argued he acted in self-defense when he used his hands to stop the victim from hitting him and when he pushed her down onto the floorboard. In contrast, defendant argued the evidence simply did not support the prosecutor's theory that defendant hit the victim in the face with a flashlight. --------
Even if we were to conclude the trial court erred, we would find the error was harmless beyond a reasonable doubt. As the People point out in their brief, there is a split among the Courts of Appeal whether error in failing to give a unanimity instruction is analyzed under the federal standard of harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18 (Chapman)), or under the state law miscarriage of justice standard (People v. Watson (1956) 46 Cal.2d 818). (Compare People v. Curry (2007) 158 Cal.App.4th 766, 783 [applying Chapman standard] with People v. Vargas (2001) 91 Cal.App.4th 506, 561-562 [applying Watson standard].) Our Supreme Court has yet to address the appropriate standard of harmless error. However, in two published decisions this court has already concluded the Chapman standard is the correct one. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188 (Wolfe); Hernandez, supra, 217 Cal.App.4th at pp. 576-578.)
"'[U]nder the mandate of Chapman . . . we must ultimately look to the evidence considered by defendant's jury under the instructions given in assessing the prejudicial impact or harmless nature of the error.' [Citation.] '[W]e must inquire whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite [elements of the crime] independently of the force of the . . . misinstruction. [Citations.]'" (Wolfe, supra, 114 Cal.App.4th at p. 188.)
As this court stated in Hernandez, error in not giving a unanimity instruction is harmless beyond a reasonable doubt "'[w]here the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that [the] defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless.' [Citation.] For example, where the defendant offered the same defense to all criminal acts and 'the jury's verdict implies that it did not believe the only defense offered,' failure to give a unanimity instruction is harmless error. [Citation.] But if the defendant offered separate defenses to each criminal act, reversal is required. [Citations.] The error is also harmless '[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 . . . .' [Citation.]" (Hernandez, supra, 217 Cal.App.4th at p. 577.)
In this case, the strongest evidence that defendant was not prejudiced by the lack of unanimity instruction is that the jury acquitted defendant of all of the greater charges and only found him guilty of simple assault, a lesser included offense to assault with a deadly weapon, and vandalism. During closing arguments, the prosecutor argued defendant's act of holding the victim down on the floorboard of her vehicle satisfied the elements of forcibly detaining her for purposes of kidnapping (count 1) or intentionally restraining or confining her for purposes of the lesser included offense of false imprisonment (count 4). The prosecutor told the jury the elements for the offense of assault with a deadly weapon (count 2), and explained that the difference between assault with a deadly weapon and the lesser included offense of simple assault was "no deadly weapon." The prosecutor argued the People had proven the charge of assault with a deadly weapon beyond a reasonable doubt because, in her statement to the deputy, the victim said defendant hit her in the face once with a large flashlight. Although the prosecutor elected to instruct the jury on lesser included offenses, during closing argument he and defense counsel took an all or nothing position.
The jury in this case was not confused. It clearly was able to parse through the victim's statement and determine which of the various alleged "hits" actually occurred. By finding defendant guilty of simple assault, a lesser included offense of assault with a deadly weapon, the jury clearly agreed with defendant that the evidence simply did not support the victim's claim that she was hit in the face with a flashlight. Likewise, by acquitting defendant of kidnapping and false imprisonment, the jury obviously concluded the evidence did not support the victim's statement that defendant pushed her down onto the floorboard and held her there. The guilty verdict of simple assault (instead of assault with a deadly weapon) demonstrates the jury believed the victim's statement and trial testimony that defendant hit her with his hands, but disbelieved defendant's claim that he acted in self-defense.
Finally, although we need not address it, defendant's claim of ineffective assistance of counsel is utterly baseless and frivolous. The right to assistance of counsel under the Sixth Amendment to the United States Constitution includes the right to the effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-674.) The California Constitution guarantees the same rights. (Cal. Const., art. I, § 15; People v. Ledesma (1987) 43 Cal.3d 171, 215.) A successful claim of ineffective assistance of counsel requires a defendant to show his attorney's performance was deficient, meaning it fell below an objective standard of reasonableness under prevailing norms, and the deficiency was prejudicial, meaning the outcome of the proceeding would have been different had counsel been adequate. (Strickland, at pp. 688, 694; Padilla v. Kentucky (2010) 559 U.S. 356, 366.)
Defendant cannot satisfy the first element of his claim of ineffective assistance of counsel for the simple fact that his attorney did, in fact, do what defendant now claims the attorney failed to do. Defendant's attorney expressly requested the jury be instructed with CALCRIM No. 3500 that it had to unanimously decide which act by defendant constituted the charged crimes. The trial court concluded a unanimity instruction was unnecessary because the attack on the victim constituted a continuous course of conduct, and it rejected defense counsel's request. By making the request and presenting a cogent argument in support of giving a unanimity instruction, defense counsel rendered effective assistance of counsel.
III.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.