Opinion
No. 64208-1-I.
November 15, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-13372-5, Theresa B. Doyle, J., entered September 21, 2009.
Affirmed by unpublished opinion per Cox, J., concurred in by Leach, A.C.J., and Ellington, J.
Celso Gramajo-Martinez challenges the trial court's denial of his request to give the jury a unanimity instruction. Because his attempt to allude police pursuing him was a continuing course of conduct, no unanimity instruction was required. We affirm.
During the early morning of December 18, 2008, Shoreline police officers Sarah Gerlitz and Bill Muncy were on patrol on Aurora Avenue. Due to severe weather conditions, the road had patches of black ice and standing snow. At 1:24 a.m. they observed Gramajo-Martinez driving a blue pick-up truck north at a high rate of speed near 178th Street North and Aurora. Two blocks later, Officer Gerlitz activated the police car's emergency lights and followed Gramajo-Martinez, indicating for him to pull over. After 12 blocks, Gramajo-Martinez did not pull over, but increased the vehicle's speed. Officer Gerlitz activated her siren and Officer Muncy advised dispatch that they were in pursuit of a vehicle. Gramajo-Martinez continued to pull away from the police car, reaching speeds of 80 miles per hour in a 40-mile-per-hour zone.
Due to the high speeds and dangerous road conditions, the officers decided to abandon the pursuit. At 200th Street North and Aurora, Officer Gerlitz turned off the lights and siren and notified dispatch that they stopped the pursuit. She slowed down to a safe speed but continued to follow Gramajo-Martinez.
Five blocks later Gramajo-Martinez made a delayed turn east onto 205th Street North, driving onto the sidewalk on the north side of the street and then the wrong way into the westbound lanes of traffic. The officers re-initiated the pursuit because they could see westbound traffic in Gramajo-Martinez's path. Officer Gerlitz turned the lights and siren back on to warn the oncoming traffic.
Gramajo-Martinez crossed the median into the proper lane. When he entered the eastbound lanes, the back end of the vehicle fishtailed. The vehicle turned 180 degrees, slid over the sidewalk on the north side of 205th, and became high-centered on a large rock. Gramajo-Martinez continued to accelerate, trying to get the car off of the rock. The officers approached the vehicle on foot and ordered Gramajo-Martinez to get out of the car. The officers then took Gramajo-Martinez into custody.
The State charged Gramajo-Martinez by amended information with attempting to elude a pursuing police vehicle and other charges not relevant to this appeal. The State alleged a special allegation of endangerment by eluding because Gramajo-Martinez's actions threatened one or more persons beside himself and the officers. Defense counsel requested that the court give the jury a unanimity instruction because there was testimony of two different pursuits: one on Aurora and one on 205th. The court declined to give the instruction. A jury convicted Gramajo-Martinez of attempting to elude and the enhancement.
Gramajo-Martinez appeals.
JURY UNANIMITY INSTRUCTION
Gramajo-Martinez argues that the trial court erred by refusing to give the unanimity instruction requested by defense counsel. We disagree.
A defendant has a constitutional right to be convicted by a jury that unanimously agrees that the crime charged has been committed. A unanimity instruction is not required, however, where the State presents evidence of multiple acts that indicate a "`continuing course of conduct.'" When the evidence involves conduct at different times and places, it tends to show several distinct acts. In contrast, when the evidence shows that a defendant engaged in a series of actions intended to achieve the same objective, it supports the characterization of those actions as a continuing course of conduct rather than several distinct acts.
State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984).
State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989) (quoting Petrich, 101 Wn.2d at 571).
Handran, 113 Wn.2d at 17 (citing Petrich, 101 Wn.2d at 571); State v. Workman, 66 Wash. 292, 294-95, 119 P. 751 (1911).
State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995).
To determine whether criminal conduct constitutes one continuing act, this court reviews the facts in a commonsense manner. We review a trial court's decision whether to give a particular instruction for abuse of discretion.
Handran, 113 Wn.2d at 17.
Stiley v. Block, 130 Wn.2d 486, 498, 925 P.2d 194 (1996).
In State v. Fiallo-Lopez, the State charged the defendant with one count of delivery of cocaine. The evidence showed there were two discrete deliveries of cocaine. First a small sample was delivered at a restaurant and then a significantly larger amount was delivered in a grocery store parking lot a short time later. This court held that the ultimate purpose of the two acts was the final delivery of drugs by the defendant to the purchaser. Because the two events were in furtherance of the same objective, the acts were both part of a single, ongoing course of conduct by the defendant and a unanimity instruction was not required. "[T]he fact that the two deliveries . . . occurred at different times and places [was] outweighed by the commonsense consideration that they were both intended for the same ultimate purpose. . . ."
78 Wn. App. 717, 899 P.2d 1294 (1995).
Id. at 723.
Id. at 720-23.
Id. at 723.
Id. at 725.
Id. at 726.
Id.
Here, after a commonsense evaluation of the facts in this case, we likewise conclude that Gramajo-Martinez's acts constituted a continuing course of conduct. The record indicates that from 192nd Street to 200th Street Gramajo-Martinez failed to stop for the police, despite being signaled to do so. Even after the police abandoned the first pursuit, Gramajo-Martinez did not stop but instead turned the wrong way onto 205th, causing the police to re-initiate pursuit. Moreover, the State presented evidence that there were only 15 seconds between the time when the first pursuit was abandoned and the second pursuit began. The entire incident, from when Gramajo-Martinez first failed to stop for the police until he crashed, spanned only a mile and a half of roadway and lasted approximately two minutes. Based on these facts, Gramajo-Martinez's acts were part of a continuing course of conduct: to evade the pursuing police officers. The court did not abuse its discretion in refusing to give a unanimity instruction.
Gramajo-Martinez argues that the failure to issue a unanimity instruction is error because the endangerment enhancement only applied to the second pursuit and there was no testimony that a third party was endangered during the first pursuit. This claim is unpersuasive.
The State argued in closing arguments that:
If you find [Gramajo-Martinez] guilty of the eluding then you have to ask yourself, during the commission of the crime, did he threaten anyone else with physical injury or harm other than the officer who was chasing him and himself. That car coming the other way. That's exactly why this is here.
RP (Aug. 25, 2009) at 149 (emphasis added).
However, because the two pursuits were part of a continuing course of conduct, the State need not prove that a third party was endangered during both pursuits.
In any event, there was testimony that Gramajo-Martinez's cousin was a passenger in the vehicle during both pursuits. His conduct endangered this passenger in addition to the occupant of the oncoming car just before his stop. Accordingly, this argument is not persuasive.
We affirm the judgment and sentence.
WE CONCUR: