Opinion
A126980
08-01-2011
PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. BERNARD BEARD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 05-090314-6)
Defendant Bernard Beard appeals from his jury trial convictions for misdemeanor assault (Pen. Code, § 240), felony possession of a controlled substance (Health & Saf. Code, §§ 11377, subd. (a)), and misdemeanor battery on a former cohabitant (§§ 242, 243, subd. (e)(1)). The defendant contends the trial court committed prejudicial error with respect to the battery and assault convictions because it failed to instruct the jury that it must unanimously agree on the act or acts which constitute a violation of the charged offenses. We disagree and affirm.
All further statutory references are to the Penal Code unless otherwise noted.
Defendant is not appealing the felony possession of the controlled substance conviction.
PROCEDURAL BACKGROUND
On April 1, 2009, the Contra Costa County District Attorney filed an information charging defendant with the following four counts: (1) assault with a deadly weapon and by force likely to produce great bodily injury against Porsha Becerril and Julia Jones (§ 245, subd. (a)(1)), (2) felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), (3) misdemeanor battery on Porsha Becerril, a former cohabitant (§§ 242, 243, subd. (e)(1)), and (4) misdemeanor obstruction of a peace officer (§ 148, subd. (a)(1)). The information also alleged that defendant had suffered a prior serious felony, served a prior prison term pursuant to (§§ 667, subd. (a)(1), 1170.12, 667.5, subd. (b)), and that defendant was ineligible for probation (§ 1203, subd. (e)(4)). Defendant pleaded not guilty to all charges and denied the enhancement allegations and a jury was impaneled to try the charges.
After submission of the evidence and after considering the arguments of counsel, the jury returned the following verdicts: not guilty on count 1 (assault with a deadly weapon) but found defendant guilty of the lesser included offense of misdemeanor assault (§ 240), guilty of count 2 (possession of a controlled substance), and guilty of count 3 (misdemeanor battery on a former cohabitant), and not guilty on count 4 (obstructing a peace officer).
At a hearing on November 23, 2009, the court found true the allegation that defendant had a prior conviction of assault with a deadly weapon and then heard the arguments of counsel regarding defendant's sentence. The court placed defendant on formal probation for a term of three years, required that defendant serve a term, as a condition of probation, of 365 days in county jail (with credit of five days of pretrial custody served), and imposed a number of other conditions recommended by the probation department. The court struck the prior serious felony strike conviction finding pursuant to section 1385.
The probation ineligibility allegation was due to the same prior felony strike conviction stricken by the court under section 1385.
On December 2, 2009, defendant filed a notice of appeal.
FACTS
The prosecution's evidence pertaining to the battery count was presented through the testimony of the victim, Porsha Becerril (Becerril) and her friend, Julia Jones (Jones). Becerril testified that on July 27, 2008, she attended a wedding with Jones. After the wedding Jones gave her a ride to her home in Pittsburg. When they arrived at Becerril's house, Jones parked her car. Becerril, with Jones following, walked toward her house to unlock the front door. When she opened the front door, defendant appeared and asked Jones to wait outside. Jones complied and Becerril walked into the house shutting the door behind her. Becerril testified she was angry to find defendant at her house that morning. She immediately threw a soda in defendant's direction and then threw a lamp, striking defendant on his back. Defendant restrained Becerril to calm her down. After defendant let her go, she left the house and entered Jones' car and headed towards the freeway.
Once seated in Jones' car, Becerril called 911 to report the altercation. A 911 dispatch tape of Becerril's first phone call to the 911 operator was played for the jury. Becerril acknowledged, when questioned by her attorney, that she told the 911 operator that defendant "slapped her" but characterized her statement as an "exaggeration" because the defendant did not actually hit her.
Jones also testified in the prosecution's case-in-chief. According to Jones, when Becerril opened the front door, defendant grabbed Becerril by the arm and quickly pulled her into the house. The prosecution also called Officer Raychel Palfey of the Pittsburg Police Department to impeach the testimony given at trial by Becerril and Jones. Palfey interviewed Becerril and Jones separately on the day of the incident. Officer Palfey testified that Becerril and Jones stated that the defendant slapped Becerril on the face immediately after Becerril opened the front door.
The prosecution also elicited testimony from Becerril and Jones pertaining to defendant's conduct after they left the residence in Jones' car. Shortly after leaving the residence, the two women discovered defendant was chasing them in his car. Becerril testified that she observed defendant's car "cut across traffic" coming in the direction towards the front of Jones' car. Defendant's vehicle came close to Jones' car and Becerril feared that defendant's vehicle might hit them. Jones testified that she was afraid during the time defendant was following them but she did not remember if defendant swerved his car in the direction of her vehicle because she was not watching defendant's car the whole time. Officer Palfey testified that when she interviewed Jones and Becerril after the incident, each stated that defendant swerved in the direction of Jones' car approximately five times during the chase.
DISCUSSION
Defendant contends his conviction for misdemeanor assault (§ 240), a lesser included offense of count 1, and misdemeanor battery on a former cohabitant (§§ 242, 243, subd. (e)(1)) must be reversed because the trial court failed to include a unanimity instruction in accord with CALJIC No. 17.01 in its charge to the jury. Contrary to defendant's contentions, and for the reason set forth below, we conclude no unanimity instruction was required on either count of conviction.
The unanimity instruction that defendant contends was required was CALJIC No. 17.01 (Fall 2009) which provides: "The defendant is accused of having committed the crime of_[in Count_]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count __ ] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count_], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict."
A. Battery
In a criminal case, a jury verdict must unanimously agree the defendant is guilty of a specific crime. (People v. Diedrich (1982) 31 Cal.3d 263, 281.) As described by our Supreme Court, "The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a 'particular crime' [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed [him] guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.] 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. In the first situation, but not the second, it should give a unanimity instruction." (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.)
Here, defendant contends the evidence established two discrete events, each of which could have independently supported the battery conviction. According to the defendant, the jury could have determined that a battery occurred when Becerril was slapped in the face or when she was grabbed and pulled into the house. As such, a unanimity instruction was required. We disagree.
The evidence presented at trial supports a finding of one act which gave rise to the battery. Becerril's testimony at trial was that defendant restrained her after she entered the residence and threw several objects at him. Jones testified that defendant grabbed and quickly pulled Becerril into the residence. On the other hand, both Jones and Becerril were impeached at trial with their pre-trial statements in which they stated that defendant slapped Becerril in the face. Significantly, neither witness testified that defendant grabbed and slapped Becerril. The jury's task here was to determine which version of the witnesses' account of the battery it believed. The jury could find that the battery occurred when defendant grabbed Becerril or when he slapped her— but the evidence did not support a finding that the battery count was based upon multiple discrete criminal events. On this record, the evidence established uncertainty as to the exact way the defendant committed a single discrete crime, hence no unanimity instruction was required. (See People v. Russo, supra, 25 Cal.4th at p. 1135.)
Additional evidence that could have supported the belief that defendant slapped Becerril on the face included a 911 transcript depicting the first phone call made by Becerril during which she stated that defendant slapped her in the face.
B. Assault
We now address defendant's contention that the trial court erred when it failed to include a unanimity instruction on the assault count (§ 240). As previously stated, "Where the jury is presented with evidence of more than one factual basis for conviction of the crime charged it must be instructed along the lines of CALJIC No. 17.01 that it must unanimously agree upon the act or acts constituting the crime." (People v. Moore (1986) 185 Cal.App.3d 1005, 1014.) However, courts have recognized several exceptions to the unanimity requirement. For example, in circumstances where multiple acts supporting a single count of conviction occur so close together in time that they form part of one transaction, courts apply an exception to the unanimity requirement known as the " 'continuous course of conduct' " exception. (People v. Moore, supra, 185 Cal.App.3d at pp. 1014-1015; e.g., People v. Mota (1981) 115 Cal.App.3d 227, 231-234 [repeated acts of rape during one hour]; People v. McIntyre (1981) 115 Cal.App.3d 899, 907-911 [two acts of oral copulation within "matter of minutes"]; see generally People v. Diedrich, supra, 31 Cal.3d at p. 282.) This exception applies "if the defendant tenders the same defense or defenses to each act and if there is no reasonable basis for the jury to distinguish between them." (People v. Crandell (1988) 46 Cal.3d 833, 875, overruled on another ground by People v. Crayton (2002) 28 Cal.4th 346, 364-365.)
Our analysis of whether the continuous conduct exception applies here is informed by the recent decision by our colleagues in the Sixth District. In People v. Datt (2010) 185 Cal.App.4th 942, 944, the defendant was convicted of reckless evading (Veh. Code, § 2800.2, subd. (a)). Datt argued that the trial court prejudicially erred in instructing the jury that there was no need for the jury to be unanimous regarding the basis for its finding that defendant's driving of the Honda while eluding Officer Marquez was done in " 'willful or wanton disregard for the safety' " of others. The element of willful and wanton required that a defendant, while fleeing or attempting to elude a pursuing peace officer, commits three or more Vehicle Code violations. (People v. Datt, supra, 185 Cal.App.4th at p. 948.) The court rejected Datt's contention and held that a unanimity instruction was not required because the acts in question were closely connected in time so as to form part of one transaction. Moreover, the defendant tendered the same defense or defenses to each act-such that there was no reasonable basis for the jury to distinguish them. (Id. at pp. 949-951.) Datt controls our analysis here. The record unambiguously supports a finding that defendant engaged in multiple acts of swerving all of which occurred as a part of one discrete criminal event. All of the acts of swerving occurred during a five to ten minute chase of Jones' vehicle and were indisputably closely connected in time so they were part of a single transaction. Moreover, defendant tendered the same defense to all the acts in arguing that the prosecution had failed to establish his guilt beyond a reasonable doubt. As such, there was no reasonable basis for the jury to distinguish between the acts of assault engaged in by defendant. (Id. at p. 951.)
Accordingly, we reject defendant's assertion of instructional error on this count.
DISPOSITION
On this record we find that no unanimity instruction was required with respect to the battery count and that the continuous course of conduct exception obviated the need for such an instruction on the assault count.
Accordingly, we affirm the judgment.
Jenkins, J.
We concur:
Pollak, Acting P.J.
Siggins, J.