Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct. No. SWF008183, Harold W. Hopp, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Teresa Torreblanca, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant guilty of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) (count 2); discharge of a firearm at an inhabited dwelling house, occupied building, or occupied motor vehicle (§ 246) (count 3); being a felon in possession of a firearm (§ 12021, subd. (a)(1)) (count 4); and attempting to dissuade a witness from testifying (§ 136.1, subd. (a)) (count 5). The jury also found true that defendant personally used a firearm in the commission of count 2 (§§ 12022.5, subd. (a) & 1192.7, subd. (c)(8)) and that defendant personally used a firearm in the commission of count 3 (§§ 667 & 1192.7, subd. (c)(8)). Defendant subsequently admitted that he had suffered a prior serious felony conviction (§ 667, subd. (a)) and a prior strike conviction (§§ 667, subd. (c) & (e)(1) & 1170.2, subd. (c)(1)). As a result, defendant was sentenced to a total term of 27 years in state prison as follows: 12 years (double the midterm) on count 2, plus a consecutive four years for the personal gun use enhancement attached to that count; a consecutive three years four months on count 3; a consecutive one year four months on count 4; a consecutive one year four months on count 5; and a consecutive five years for the prior serious felony conviction enhancement.
All future statutory references are to the Penal Code unless otherwise stated.
The jury found defendant not guilty of attempted murder (§§ 664/187, subd. (a)) as charged in count 1.
On appeal, defendant contends that the sentences on counts 3 and 4 should have been stayed pursuant to section 654 and that the trial court prejudicially erred in failing to give a unanimity instruction as to count 5, and therefore that count should be reversed. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND
On June 3, 2004, Deandre Hodges was living in a motor home next to his grandmother Leah McRoy’s trailer house on Hunter Street in Perris. Deandre’s grandmother and his sister lived in the trailer home located in the front of the same property, while his uncle, David Warren, lived in a trailer behind his grandmother’s home.
Deandre Hodges is also known as Deandre Warren.
At some point on June 3, Deandre left his trailer and went inside his grandmother’s house to help her cook. When he went back outside, he saw defendant, who had been a friend of his since high school, driving down Hunter Street in a white Pontiac Grand Am. The car belonged to defendant’s girlfriend.
At trial, Deandre invoked his Fifth Amendment privilege and refused to testify. His October 1, 2004, preliminary hearing testimony was read into the record. In addition, Deandre’s September 23, 2004, recorded interview with Riverside County District Attorney Investigator Bobbie Garza was played for the jury.
Defendant stopped and began conversing with Deandre, who was standing about five or 10 feet from the car. During their conversation, defendant asked, “Why did you and your uncle jump me?” Deandre tried to explain that they had not jumped defendant. Deandre then said, “Well, if you have a problem with me, we can take it to the corner.” Defendant replied, “Is that right?” He picked up a small black semiautomatic MAC-10 or MAC-11 from the floor of the car and pointed it at Deandre.
Deandre and his uncle had assaulted defendant on a prior occasion.
Defendant fired two to four times before Deandre was able to run away. Defendant fired two or more shots as Deandre ran and as defendant drove away. Altogether, Deandre heard about seven shots. Defendant’s sister saw a two-door compact car drive by with a Black adult male inside and heard seven or eight gunshots.
Deandre did not think defendant was trying to hit him with the bullets. Deandre ran to where his uncle was and told him that defendant had shot at him. Deandre’s aunt or uncle called the police.
At 10:52 a.m., Riverside County Sheriff’s Deputies Otis Grant and Matt Simms received a dispatch report about the shooting and arrived at Deandre’s residence about six minutes later. Deandre told Deputy Grant that “Terrell Davis” was the perpetrator and that he lived at an address off Oakwood in Mead Valley. Deandre also stated that defendant was driving a white Geo vehicle. David, who was reluctant to speak with the deputy, informed Deputy Grant that he was in the backyard during the shooting when his nephew Deandre ran towards him and said that “Tarrell” had just shot at him.
Deputies found a bullet hole in the trailer by which Deandre was standing at the time of the shooting. They also discovered a bullet lodged into the other trailer, five spent bullets, and five bullet casings spread out down the road, as if somebody was firing from a moving vehicle.
On June 11, 2004, Deandre identified defendant as the perpetrator from a photographic lineup.
On August 3, 2004, an investigator from the Riverside County Public Defender’s Office interviewed David. David informed the investigator that he was at home at the time of the shooting, getting ready to leave. He was in the backyard retrieving his keys when he heard several gunshots. He ran to the front of the residence and saw Deandre running toward him. Deandre yelled that defendant was shooting at him. David saw a two-door white car driving down Hunter Street. David recognized the car as belonging to defendant’s girlfriend.
Two or three months after the shooting, Deandre saw defendant at a friend’s house. Deandre told defendant that he did not like the way defendant handled the situation. Defendant told Deandre that he did not need him and his uncle going to court and “snitching” on him. They then socialized and played video games together.
The day prior to the preliminary hearing, defendant called Deandre and asked whether he was going to court. Deandre said he was under court order and that someone was going to take him there the next day. Defendant replied, “Well, I don’t want nobody telling on me.” Defendant then asked whether Deandre was going to tell the truth. Deandre told defendant that he had no choice.
Deandre told authorities that he did not want to testify in this case. He felt a lot of pressure from defendant, defendant’s girlfriend, and family members not to become a “snitch.”
Brian Stenlake, who admitted that he had stolen a car stereo out of a locked car in November 2000, testified on behalf of the defense. He stated that he was at Daryl Smith’s residence for a barbeque when he heard Deandre talking about the shooting. Deandre stated that everything he had previously said about the shooting was a lie and that his uncle gave him some crack in exchange for saying defendant was the shooter. Stenlake also said that when he went to defendant’s bail hearing in October 2004 with Smith, defendant’s girlfriend, and Deandre, he heard Deandre tell defendant’s attorney that defendant was not the shooter. Stenlake claimed that he heard Deandre state many times that defendant was not the shooter.
Defendant’s girlfriend also testified on behalf of the defense. She claimed that defendant only drove her car when she was present and that Deandre told her defendant was not the shooter on several occasions. She also stated that Deandre offered to not testify against defendant in exchange for money.
Daryl Smith, who admitted that he previously had been convicted of armed robbery and felony spousal abuse and who had known defendant and Deandre their entire lives, testified that Deandre had told him several times that defendant was not the shooter. Daryl explained that Deandre had told him that he did not know who shot at him and that Deandre’s uncle told him to say it was defendant. Daryl further stated that when he went with Deandre to speak with the district attorney, he heard Deandre tell the district attorney that defendant was not the shooter.
On October 31, 2005, Deandre wrote a letter to the judge stating that defendant was not the shooter and that he had previously lied when he said it was defendant.
II
DISCUSSION
A. Section 654
Defendant was charged with and eventually convicted of assault with a semiautomatic firearm (count 2); discharging a firearm at an inhabited dwelling house, occupied building, or occupied motor vehicle (count 3); being a felon in possession of a firearm (count 4); and attempting to dissuade a witness from testifying (count 5).
At the sentencing hearing, defense counsel argued that the sentence count 3 should be stayed pursuant to section 654, as he had a single intent and objective when he committed counts 2 and 3. The trial court disagreed and noted that count 3 involved multiple victims. The court explained that Deandre’s sister and grandmother were in the inhabited dwelling when defendant discharged his semiautomatic weapon at Deandre.
Defendant renews his contention on appeal that the sentence of three years four months for count 3 should have been stayed pursuant to section 654.
Section 654, subdivision (a) provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 precludes multiple punishments not only for a single act, but also for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; see also People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Akins (1997) 56 Cal.App.4th 331, 338-339; People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) “The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal).) But “[i]f [a defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639; accord, People v. Latimer (1993) 5 Cal.4th 1203, 1216.)
“The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.” (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312.) The court’s findings may be either express or implied from the court’s ruling. (See People v. Blake (1998) 68 Cal.App.4th 509, 512.)
“Although section 654 does not expressly preclude double punishment when an act gives rise to more than one violation of the same Penal Code section . . ., it is settled that the basic principle it enunciates precludes double punishment in such cases also.” (Neal, supra, 55 Cal.2d at p. 18, fn. 1.)
However, the California Supreme Court in Neal construed section 654 to permit separate punishments for an act of violence against multiple victims because the underlying purpose of section 654’s proscription against multiple punishment “is to insure that the defendant’s punishment will be commensurate with his criminal liability.” (Neal, supra, 55 Cal.2d at p. 20; see also People v. Solis (2001) 90 Cal.App.4th 1002, 1023.)
1. Count 3
As to count 3, the People contend that the additional punishment is proper under the multiple-victim exception to section 654. We agree.
In People v. Oates (2004) 32 Cal.4th 1048, our Supreme Court addressed the well-established exception to section 654’s prohibition against multiple punishment in cases involving crimes of violence committed against multiple victims: “We have long held that ‘the limitations of section 654 do not apply to crimes of violence against multiple victims.’ [Citation.] As we have explained: ‘The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled. Section 654 is not “. . . applicable where . . . one act has two results each of which is an act of violence against the person of a separate individual.” [Citations.]’ [Citation.]” (Oates, at p. 1063.)
Section 654 similarly does not apply where a defendant commits multiple acts of violence against multiple individuals during an indivisible course of conduct sharing the same objective. (People v. Ramos (1982) 30 Cal.3d 553, 587 [“even though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim”], reversed on another ground in California v. Ramos (1983) 463 U.S. 992.)
A number of cases have upheld the application of the multiple victim exception based on evidence of multiple victims, without considering whether the identities of those victims had been pleaded. For example, in People v. Cruz (1995) 38 Cal.App.4th 427, the defendant fired four shots toward a security guard who was standing inside a doorway. (Id. at p. 431.) He was convicted of assault with a firearm and discharging a firearm at an occupied building. (Id. at p. 430.) The appellate court held the multiple-victim exception applied. It noted evidence that the guard had tried to move “‘children and other people’” who were standing near the door away. It concluded the guard was the only victim of the assault, but there were other victims of the discharge of a firearm at an occupied building. (Id. at pp. 434-435.) It seems unlikely that the “children and other people” had been alleged as additional victims. In any event, the court discussed only the evidence; it did not find it necessary to discuss the allegations or the findings. (See also People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1736-1737 [multiple victim exception allows multiple punishment for discharging firearm at an occupied vehicle and for attempted murder of one of the passengers; evidence at preliminary hearing gave defendant notice of multiple victims].)
Here, the trial court properly could find multiple victims even though the information did not specify, and the jury did not make any finding regarding, the other victims, namely Deandre’s sister and grandmother. When defendant used his semiautomatic weapon and shot in the direction of Deandre and the structures on the property where Deandre lived, Deandre’s sister and grandmother were inside the main house. Impact marks from the firing of the weapon were found on both trailers on the property. As the prosecutor argued and the trial court found, Deandre’s sister and grandmother were victims because the main house was in the direct path of the bullets. The crime of discharging a firearm at an occupied building, by its very definition, requires that the defendant “maliciously and willfully discharge a firearm at an . . . occupied building” (§ 246), thereby constituting an act of violence that is committed either “with the intent to harm . . . or by means likely to cause harm” to one or more persons. (Neal, supra, 55 Cal.2d at p. 20.) When different victims are involved, as in People v. Cruz, supra, 38 Cal.App.4th 427 and here, the multiple-victim exception is satisfied. Defendant’s violent actions were performed in a manner likely to cause harm to all three individuals at the inhabited dwelling.
We conclude the trial court did not err by imposing separate and unstayed sentences for the assault with a semiautomatic firearm (count 2) and discharge of a firearm at an inhabited dwelling (count 3).
2. Count 4
Defendant also claims that count 4 should have been stayed pursuant to section 654 because the assault with a semiautomatic firearm (count 2) and the felon-in-possession-of-a-firearm offense (count 4) were part of an invisible course of conduct.
The California Supreme Court in People v. Bradford (1976) 17 Cal.3d 8 (Bradford) explained the analytical approach for applying section 654 to crimes committed by a felon in possession of a firearm. In Bradford, a police officer stopped the defendant for a traffic violation. The defendant wrested the officer’s revolver from him and fired several shots at the officer and a bystander before driving away. (Bradford, at p. 13.) The defendant was convicted of assault with a deadly weapon on a peace officer, exhibiting a firearm against the bystander, and being felon in possession of a firearm. (Ibid.)
The defendant argued section 654 prohibited sentence on both convictions for assault with a deadly weapon and possession of a concealable firearm. The Supreme Court accepted the People’s concession on appeal, explaining: “The standard for applying section 654 in the circumstances of this case was restated in People v. Venegas (1970) 10 Cal.App.3d 814 [89 Cal.Rptr. 103]. ‘Whether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms concealable upon the person, constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense.’ [Citation.] [¶] Defendant’s possession of [the officer’s] revolver was not ‘antecedent and separate’ from his use of the revolver in assaulting the officer. The punishment provided for violation of section 12021 is the lesser punishment for the two crimes . . . [and] its execution must be stayed. [Citations.]” (Bradford, supra, 17 Cal.3d at pp. 22-23.)
In People v. Ratcliff (1990) 223 Cal.App.3d 1401 (Ratcliff), the defendant used a gun to commit two robberies an hour and a half apart. (Id. at pp. 1404-1405.) This court rejected his argument that imposing sentences for being armed during the robberies and being a felon in possession of a firearm violated section 654. We explained: “Unlike in Bradford and Venegas, the defendant already had the handgun in his possession when he arrived at the scene of the first robbery. A justifiable inference from this evidence is that defendant’s possession of the weapon was not merely simultaneous with the robberies, but continued before, during and after those crimes. Section 654 therefore does not prohibit separate punishments. [Citation.] [¶] . . . [¶] Commission of a crime under section 12021 is complete once the intent to possess is perfected by possession. What the ex-felon does with the weapon later is another separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon. [Citation.] In other words, in the case here, defendant’s intent to possess the weapon did not import or include the intent to commit the robberies.” (Ratcliff, at pp. 1413-1414.)
Similarly, in People v. Jones (2002) 103 Cal.App.4th 1139 (Jones), the Court of Appeal rejected the defendant’s claim his possession of a firearm was incidental to and simultaneous with the primary offense of shooting at an inhabited dwelling. There, the defendant’s accomplice attempted to speak to the defendant’s former girlfriend while the defendant remained in a parked car. The defendant and his companion departed after being told she was unavailable. Approximately 15 minutes later, the defendant and his cohort returned. The defendant fired several shots at the residence. Investigators searched the defendant’s residence about one week later but failed to recover the gun or ammunition. (Id. at pp. 1141-1142.)
The Jones court concluded substantial evidence supported the trial court’s implied findings the defendant’s possession of the firearm “was antecedent to and separate from the primary offense of shooting at an inhabited dwelling. It strains reason to assume that Jones did not have possession for some period of time before firing shots at the [victim’s] home. Any other interpretation would be patently absurd. Jones committed two separate acts: arming himself with a firearm, and shooting at an inhabited dwelling.” (Jones, supra, 103 Cal.App.4th at p. 1147.) As to whether the defendant’s possession formed part of an indivisible transaction, the court observed: “The evidence likewise supported an inference that Jones harbored separate intents in the two crimes. Jones necessarily intended to possess the firearm when he first obtained it, which . . . necessarily occurred antecedent to the shooting. That he used the gun to shoot at the [victim’s] house required a second intent in addition to his original goal of possessing the weapon. Jones’s use of the weapon . . . thus comprised a ‘separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon.’ [Citation.] That Jones did not possess the weapon for a lengthy period before commission of the primary crime is not determinative.” (Id. at pp. 1147-1148.)
Here, defendant’s unlawful possession of the gun was complete when he carried it concealed and loaded on the floorboard of the car. In addition, apparently he discarded the gun sometime after the commission of the crimes, as no gun was ever recovered. Section 654 therefore does not bar separate punishment for being in possession of the firearm.
B. Unanimity Instruction
Lastly, defendant contends the trial court prejudicially erred by failing to instruct the jury with a unanimity instruction with regard to count 5 (attempting to dissuade a witness from testifying).
To prove defendant attempted to dissuade Deandre from testifying, the People introduced evidence showing that, two or three months after the shooting, when Deandre saw defendant at a mutual friend’s house, defendant told Deandre that he did not need him and his uncle going to court and “snitching” on him. The People also introduced evidence that on the day prior to defendant’s preliminary hearing defendant telephoned Deandre and asked whether he was going to court. Deandre said he was. Defendant replied, “Well, I don’t want nobody telling on me.” Defendant then asked Deandre whether he was going to tell the truth. Deandre responded that he had no choice.
The prosecutor did not make an election regarding on which of defendant’s statements he was relying to prove the charge of attempting to dissuade a witness, nor did the trial court give a unanimity instruction. Defendant claims this was an error which requires reversal of count 5. We disagree.
Criminal defendants have a constitutional right to a unanimous jury verdict. (Cal. Const., art. I, § 16; People v. Jones (1990) 51 Cal.3d 294, 321.) For a conviction to be valid, jurors must “unanimously agree defendant is criminally responsible for ‘one discrete criminal event.’” (People v. Thompson (1995) 36 Cal.App.4th 843, 850, quoting People v. Davis (1992) 8 Cal.App.4th 28, 41; see also People v. Mayer (2003) 108 Cal.App.4th 403, 418.) To ensure that jurors do so, courts impose the “either/or” rule: “When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. [Citation.]” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534; see also People v. Napoles (2002) 104 Cal.App.4th 108, 114 [approving the either/or rule]; Jones, at p. 307 [citing either/or rule with approval].) Thus, if the evidence indicates jurors might disagree as to the particular act a defendant committed, and the prosecution makes no election, the trial court has a sua sponte duty to give CALJIC No. 17.01 or its equivalent. (See Melhado, at p. 1534; People v. Brown (1996) 42 Cal.App.4th 1493, 1500; Thompson, at p. 850; People v. Martinez (1988) 197 Cal.App.3d 767, 772-775; People v. Madden (1981) 116 Cal.App.3d 212, 219.) This unanimity instruction is necessary to prevent the jury from “amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.” (People v. Deletto (1983) 147 Cal.App.3d 458, 472.)
However, neither an election by the prosecutor nor a unanimity instruction is required where the offenses are so closely connected in time that they form part of one transaction or where the statute itself contemplates a continuous course of conduct. (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) “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.]” (Ibid., quoting People v. Crandell (1988) 46 Cal.3d 833, 875.)
The People assert that the charge of attempting to dissuade a witness constituted a single course of conduct and that no unanimity instruction was therefore required.
In People v. Salvato (1991) 234 Cal.App.3d 872 (Salvato), citing a very early case, People v. Castro (1901) 133 Cal. 11, the court held: “[W]here several distinct potentially criminal acts are shown, and only one charged, the defendant is entitled, at the commencement of trial (or as soon as practically possible), to a prosecutorial election upon demand. We do not hold that an election is required in every criminal case involving multiple acts, nor that refusal to require one would be prejudicial error in all cases. First, election is only required on demand. Second, an election cannot be required where none is possible, as where the evidence is completely generic, or where the various acts do not constitute distinct potential crimes but rather one continuous course of criminal conduct. Finally, refusal will only be prejudicial if an election would have made some significant difference in the trial, whether through the exclusion of evidence, allowing a focused defense, on in some other respect that materially implicates the right to be advised of the charges.” (Salvato, at p. 882.)
The Salvato court added: “Neither an election nor a unanimity instruction is required when the crime falls within the ‘continuous conduct’ exception.” (Salvato, supra, 234 Cal.App.3d at p. 882.) We note the continuous course of conduct exception arises in two contexts: one, if the acts are so closely connected that they form a single transaction, or, two, if the offense itself consists of a continuous course of conduct. (People v. Thompson, supra, 36 Cal.App.4th at p. 851.) Acts viewed as a continuous course of conduct because they are a single transaction typically have a close temporal connection. (See People v. Avina (1993) 14 Cal.App.4th 1303, 1309.) As to acts separated by significant periods of time, they may fall within the second category of the continuous-course-of-conduct exception if the statute defines an offense that may be continuous in nature. (Ibid.) That is, when the issue presented to the jury is whether a defendant committed a course of conduct and not whether he committed a specific act on a specific day, the jury need not unanimously agree on a specific act. (People v. Higgins (1992) 9 Cal.App.4th 294, 301.) The actus reus of a continuous-course-of-conduct crime is not a specific act, but rather a series of acts occurring over a substantial period of time, generally on the same victim and generally resulting in cumulative injury. (People v. Whitham (1995) 38 Cal.App.4th 1282, 1296.) The agreement required for conviction is unanimous assent that the defendant engaged in the criminal course of conduct. (Ibid.)
In Salvato, the defendant was charged with dissuading a witness from testifying in violation of section 136.1, subdivision (c)(1) and with making criminal threats in violation of section 422. (Salvato, supra, 234 Cal.App.3d at p. 876.) These charges arose from the defendant’s conduct, including making threats and gestures and leaving messages and letters, during a two month period when he and his wife were going through a divorce. (Id. at pp. 876-877.) Although the court did give a unanimity instruction, the defendant asserted that he was entitled to prosecutorial election. (Id. at p. 878.) On appeal, the court held that a violation of the criminal-threats statute was not a continuous-course-of-conduct crime in that the statute focused on an individual act; as for section 136.1, however, the court said, “The language of section 136.1 focuses on an unlawful goal or effect, the prevention of testimony, rather than on any particular action taken to produce that end. ‘Prevent’ and ‘dissuade’ denote conduct which can occur over a period of time as well as instantaneously. The gravamen of the offense is the cumulative outcome of any number of acts, any one of which alone might not be criminal. Thus it falls within the continuous conduct exception, and no election or unanimity instruction [is] required.” (Salvato, supra, 234 Cal.App.3d at p. 883.) Accordingly, the Salvato court held that prosecutorial election was required as to the criminal threats counts but not as to the violation of section 136.1.
Defendant argues this case does not fall within the continuous-course-of-conduct exception because (1) defendant engaged in two discrete conversations with Deandre about testifying; (2) the conversations occurred on different dates and at different locations; and (3) the reasoning of Salvato “would insulate from conviction any acts by a defendant to discourage a witness from testifying beyond the first act.” We reject these contentions. As Salvato explains, section 136.1 is a continuous-conduct crime. (Salvato, supra, 234 Cal.App.3d 872, 882-883.) Additionally, as noted above, acts separated by periods of time may fall within the continuous-course-of-conduct exception if the statute defines an offense which may be continuous in nature. (See People v. Avina, supra, 14 Cal.App.4th at p. 1309; see also People v. Djekich (1991) 229 Cal.App.3d 1213, 1221 [“[a]bsent express legislative direction to the contrary, where the commission of a crime involves continuous conduct which may range over a substantial length of time and defendant conducts himself in such a fashion with but a single intent and objective, that defendant can be convicted of only a single offense”].)
Even if we were to assume the court erred by failing to give a unanimity instruction as to count 5, we do not agree with defendant that it was prejudicial. The failure to give a unanimity instruction to the jury is governed by the harmless-error standard of Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]. (People v. Deletto, supra, 147 Cal.App.3d at p. 471.) Failure to give a unanimity instruction is harmless if the record provides no rational basis 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 or she committed any. (Id. at p. 473.) “Where 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, the failure to give the unanimity instruction is harmless.” (People v. Thompson, supra, 36 Cal.App.4th at p. 853.)
Here, “the evidence supporting each act was the same -- the victim’s testimony -- so that there was no basis for the jury to conclude that some but not all of the acts took place.” (People v. Ramirez (1987) 189 Cal.App.3d 603, 613.) Although the two warnings occurred a month or so apart, they arose from the same circumstances and were subject to the same defense. Essentially, defendant’s defense was that he was not the shooter and that the credibility of Deandre, Deandre’s sister, and Deandre’s uncle were suspect. We conclude any error in failing to give a unanimity instruction as to count 5 here was harmless beyond a reasonable doubt.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., McKINSTER, J.