Opinion
D081724
04-10-2024
THE PEOPLE, Plaintiff and Respondent, v. MERRITT WYETH, Defendant and Appellant.
Nate Crowley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Evan Stele, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE408540, Patricia K. Cookson, Judge. Reversed and remanded.
Nate Crowley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Evan Stele, Deputy Attorneys General, for Plaintiff and Respondent.
IRION, J.
A jury found Merritt Wyeth guilty of one count of misdemeanor battery arising from an incident in which she slapped her nephew's face at least two times while in different locations on the same morning. Wyeth contends that the trial court prejudicially erred because it did not instruct the jury that it was required to agree on which act she committed as the basis for the battery conviction. (See CALCRIM No. 3500.) The People concede that the trial court erred in not giving a unanimity instruction, but they contend that the error was harmless. We conclude that the error was prejudicial. Accordingly, we reverse the judgment on the battery conviction, and we remand for further proceedings.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of March 21, 2021, Wyeth's teenaged minor nephew (Nephew) was at Wyeth's house in Jacumba after spending the night. As Nephew testified, Wyeth was angry with him and his cousin (Wyeth's daughter) because the dogs were in Wyeth's bedroom and bedroom closet. Wyeth reacted to some of Nephew's statements by cursing at him and telling him to get out of the house.
Nephew left the house and started walking down the road toward the next town, and he called his mother in El Cajon to pick him up. According to Nephew's testimony, as he was walking, Wyeth drove up next to him and got out of her car. Wyeth yelled at Nephew to get into her car, but he refused and continued walking. Wyeth followed after Nephew and grabbed him. Nephew told Wyeth to let go and called her a "bitch." Wyeth then slapped Nephew on the left side of his face. Nephew kept walking, and Wyeth drove away, "flipping [him] off" as she left.
As Nephew continued to walk, a border patrol agent stopped to check on his welfare. While that was happening, Wyeth's on-again-off-again boyfriend, Jonathan, drove by and offered to give Nephew a ride home.
Jonathan drove with Nephew to meet up with Jonathan's mother, Linda, to get money to buy gas. According to the testimony of both Nephew and Linda, Wyeth saw the three of them and reacted by speeding up towards them and almost hitting Linda's car, with Linda inside of it, but veering off at the last minute. Wyeth then drove away.
Nephew walked back to Wyeth's house because he was worried about his cousin. While Nephew was getting ready to leave the house with his cousin, Wyeth returned. According to Nephew's testimony, as he and Wyeth interacted at the house, Wyeth slapped Nephew's face for a second time. Wyeth also threatened to kill Nephew. Nephew fled from the house, and on his way out, according to Nephew's testimony, he broke the gate on Wyeth's fence when he kicked it closed.
Nephew ran back to town, where he found Linda still parked in the same spot, and he got into Linda's car. According to Linda's testimony, Nephew "had a big handprint on the side of his face" that was "a red welt." As Linda drove around with Nephew, Wyeth located them and started chasing them in her car. Eventually, Linda drove Nephew to meet his parents and law enforcement officers who had been contacted about the situation.
The officers on the scene noted a red mark on Nephew's face. The Deputy who interviewed Nephew described Nephew as stating that Wyeth had slapped him "twice during the argument." However, in describing the events of the morning as related by Nephew, the Deputy stated that the first slap occurred during the argument about the dogs before Nephew left the house the first time, not later on the side of the road after Wyeth got out of her car, as Nephew testified. Specifically, the prosecutor asked the deputy to describe "what [Nephew] said happened after the dog ran in the closet." The Deputy replied, "[Wyeth] became upset, slapped him." The Deputy did not describe the second slap.
During closing argument, the prosecutor also seemed to endorse the idea that one of the two slaps occurred in the morning during the argument about the dogs: "[Wyeth] woke up that morning, and it started off bad. The dogs got somewhere they weren't supposed to be. There was some teenagers who weren't following the rules, and then who confronted her and argued back. And so [Wyeth], in response to that anger, and in response to [Nephew], slapped him in the face." Similarly at another point in her closing argument, the prosecutor referred to Wyeth having committed "a simple battery on . . . [Nephew] because he wouldn't listen, the dog got in the closet."
Arising out of the events of March 21, 2021, Wyeth was charged with (1) assault by means likely to produce great bodily injury, with personal use of a dangerous and deadly weapon (a vehicle), based on the allegation that she drove toward Linda's car and swerved away at the last minute (count 1; Pen. Code, §§ 245, subd. (a)(4), 1192.7, subd. (c)(23)); and (2) misdemeanor battery on Nephew (count 2; §§ 242, 243 subd. (a)). Arising from a later incident, involving Wyeth's alleged violation of a civil harassment restraining order that Linda obtained, Wyeth was also charged with disobeying a court order (count 3; § 166, subd. (a)(4)).
Unless otherwise indicated, all further statutory references are to the Penal Code.
The jury acquitted Wyeth on counts 1 and 3, but found her guilty of misdemeanor battery in count 2. On February 7, 2023, the trial court placed Wyeth on one year of summary probation.
II.
DISCUSSION
A. Applicable Legal Standards
Wyeth's sole argument is that the trial court prejudicially erred by not giving a jury instruction on unanimity. We apply a de novo standard of review. (People v. Hernandez (2013) 217 Cal.App.4th 559, 568 (Hernandez).)
Under the state and federal Constitutions, a unanimous jury verdict is required to convict a person of a crime. (Ramos v. Louisiana (2020) 590 U.S.__,__ [140 S.Ct. 1390, 1397] (Ramos) ["the Sixth Amendment's right to a jury trial requires a unanimous verdict"]; People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) As California courts apply the unanimity requirement, "the jury must agree unanimously the defendant is guilty of a specific crime.... 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." (Russo, at p. 1132, citations omitted.)
" 'The prosecution can make an election by "tying each specific count to specific criminal acts elicited from the [witness's] testimony"-typically in opening statement and/or closing argument.'" (People v. Brugman (2021) 62 Cal.App.5th 608, 627.) However, in the absence of a prosecutorial election, "[a] unanimity instruction is required if there is evidence that more than one crime occurred, each of which could provide the basis for conviction under a single count." (People v. Grimes (2016) 1 Cal.5th 698, 727 (Grimes).) "A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses" and is required "only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged." (People v. Maury (2003) 30 Cal.4th 342, 422-423 (Maury).) "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.'" (Russo, supra, 25 Cal.4th at p. 1132.) When a unanimity restriction is warranted, the trial court must give the instruction sua sponte. (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
Our Supreme Court has recognized exceptions to the requirement that a unanimity instruction must be given absent a prosecutorial election. "For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' . . ., or 'when the statute contemplates a continuous course of conduct or a series of acts over a period of time.'" (People v. Jennings (2010) 50 Cal.4th 616, 679, citations omitted.)
B. The Trial Court Erred by Not Giving a Unanimity Instruction
Wyeth argues that a unanimity instruction was required here because jurors could have decided to base the battery verdict on any of three possible scenarios in which Wyeth slapped Nephew's face. First, as Nephew testified, Wyeth slapped Nephew while he was walking down the road and refused to get into her car. Second, as Nephew testified, Wyeth slapped him after he returned to the house to check on his cousin. Third, the deputy who interviewed Nephew on the day of the incident described a slap that occurred in the morning during the argument about the dogs-a version of events that seems to have been endorsed by the prosecutor during closing argument. Each of those three possible slaps "could have been charged as separate offenses" (Maury, supra, 30 Cal.4th at p. 422) because they are "evidence that more than one crime occurred, each of which could provide the basis for conviction under a single count." (Grimes, supra, 1 Cal.5th at p. 727.) Further, as the People correctly concede, the continuous course of conduct exception does not apply here because the language of the battery statute (§ 242) "does not indicate that the [L]egislature intended to punish battery as a course of conduct," and the slaps "were separate in time and place."
Because any of the several slaps could have served as the factual basis for a battery verdict, to preserve Wyeth's right to a unanimous verdict either (1) the prosecutor was required to make an election as to which slap formed the basis for the charge in count 1, or (2) the trial court was required to give a unanimity instruction. Neither occurred. Specifically, although the prosecutor acknowledged during closing argument that Nephew had described two different slaps, she did not explain to the jury which of the slaps the People were relying upon to support the battery count. Further, the trial court did not give a unanimity instruction. Therefore, as the People acknowledge, the trial court erred by not sua sponte instructing the jury with CALCRIM No. 3500 that it must agree on which act Wyeth committed as the basis for the battery conviction.
C. The Error Was Prejudicial
The dispute between the parties is whether the failure to give a unanimity instruction was prejudicial error that requires reversal.
As a preliminary matter, we must determine what standard to apply in assessing whether the error requires reversal-the Chapman standard that applies to federal constitutional error (Chapman v. California (1967) 386 U.S. 18) or the Watson standard that applies to errors of state law (People v. Watson (1956) 46 Cal.2d 818, 836). Prior to the United States Supreme Court's ruling in Ramos, supra, 590 U.S. at page , which clarified that a defendant has a federal constitutional right to a unanimous verdict, the California appellate courts were in disagreement "as to whether the Chapman standard or Watson standard for harmless error applies in a unanimity instruction case," although the "majority of the courts . . . applied Chapman." (Hernandez, supra, 217 Cal.App.4th at p. 576.) Because the high court has now clarified that jury unanimity is a federal constitutional requirement (Ramos, at p. ), we apply the Chapman standard here. Applying Chapman in this case, the inquiry is whether we can "conclude beyond a reasonable doubt that each juror agreed on the particular criminal act that formed the basis of the verdict." (Hernandez, at p. 578.)
Case law explains that "[u]nder Chapman . . . 'the failure to give a unanimity instruction is harmless' . . . '[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.'" (Hernandez, supra, 217 Cal.App.4th at p. 577.) Thus, for example, harmless error occurs "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,'" or" '[w]here the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted [the defendant] of any of the various offenses shown by the evidence.'" (Ibid.) "The important question is whether there was anything in the record by way of evidence or argument to support discriminating between the two [or more] incidents such that the jury could find that appellant committed one [criminal act] but not the other." (People v. Brown (1996) 42 Cal.App.4th 1493, 1502.)
The People argue that the trial court's failure to instruct the jurors that they must decide on the particular slap that formed the basis for their battery verdict was not prejudicial because defense counsel's closing argument "did not provide the jury any reason to distinguish the two slaps." The People argue that, accordingly, "[o]nce the jury determined that [Nephew] had indeed been slapped once, it had no reason to disbelieve that he had been slapped more than once," so that "if the jury would have convicted [Wyeth] of one battery, it would have convicted her of all of them." As the People view the record, "the only question for the jurors was whether to believe [Wyeth] slapped [Nephew] twice or not at all." As we will explain, we are not persuaded by the People's argument.
Defense counsel made several different arguments in defense of the battery count. First, he stated during closing argument that Wyeth told law enforcement that she did not slap Nephew, and he reiterated that Wyeth "has maintained her innocence as to all of this from the beginning." Clearly, the jury did not credit that denial, as it found that Wyeth committed battery. However, the decision to discredit Wyeth's denial does not mean that all the jurors based their verdict on the same alleged conduct. Because of two other things that defense counsel said during closing argument we cannot be certain that all of the jurors agreed to base the battery verdict on the same slap.
The prosecutor objected during defense counsel's closing argument that the evidence at trial did not reflect any denial by Wyeth about slapping Nephew. The trial court instructed the jurors that they were the finders of fact and that they should use their judgment to determine whether counsel's argument was supported by the facts. We note that Wyeth did not testify, and there was no evidence at trial that Wyeth denied to law enforcement that she slapped Nephew.
First, while acknowledging that Wyeth denied slapping Nephew at all, defense counsel also told the jury that "what [Nephew] told [the Deputy], is probably the truth." As noted above, the only slap that the Deputy specifically described, based on what Nephew told him, was a slap that occurred during the argument about the dogs before Nephew left the house for the first time. Further, the prosecutor seemed to endorse the existence of that slap during her closing argument. However, Nephew's testimony did not describe that slap at all. It is possible that some of the jurors accepted defense counsel's suggestion that they credit the Deputy's testimony, and that they therefore based the battery conviction on the slap during the argument about the dogs, as the Deputy described it. But in light of Nephew's testimony, it is possible that some other jurors decided to reject the Deputy's description of a slap occurring during the argument about the dogs. Those jurors might have, therefore, based their verdict on one of the two slaps that Nephew described during his testimony. As between those two remaining slaps, some jurors might have decided that only one of them was sufficiently proved to support a guilty verdict. For instance, a juror might have concluded that Nephew's testimony about the slap by the side of the road was credible because it was described in detail, whereas the circumstances of the slap after Nephew returned to the house to check on his cousin were too vaguely described to support a guilty verdict.
Second, with respect to the two slaps that Nephew described, defense counsel made a statement during closing argument that could have caused certain jurors to decide that only one of the two slaps was sufficient to support a battery finding. Defense counsel argued to the jury: "Let me ask you a question, if [Wyeth] was [Nephew's] mother, would she be here? If he trashed her house, called her a bitch, and his mother smacked him, would she be here? No. So even if you find there's some evidence to support [the battery] charge, you don't have to find her guilty." Because Nephew described two different slaps, which occurred in different circumstances, and the Deputy referred to yet another, a juror might have been convinced by defense counsel's argument with respect to one slap, but not the others. For example, Nephew testified that the first slap occurred immediately after he called Wyeth a "bitch." A juror could conclude that slap was therefore justified and should not form the basis for a battery conviction, but a different slap, which was not accompanied by that specific disrespectful insult, should not. Fundamentally, because defense counsel's argument required every juror to apply their own personal views about the acceptable conduct between an aunt and a nephew, we are unable to determine if any individual juror might have decided to disregard a specific slap.
Based on the foregoing considerations, we are unable to conclude beyond a reasonable doubt that all of the jurors necessarily based their battery verdict on the same alleged conduct by Wyeth. The error was accordingly prejudicial.
DISPOSITION
The judgment on the battery conviction is reversed, and this matter is remanded to the trial court for further proceedings.
WE CONCUR: HUFFMAN, Acting P. J. DATO, J.