Opinion
D040652.
11-12-2003
THE PEOPLE, Plaintiff and Respondent, v. SHANE TODD BUTLER, Defendant and Appellant.
Shane Todd Butler appeals from a conviction of resisting an executive officer (Pen. Code, § 69). Butler contends the judgment should be reversed because the trial court failed to give a unanimity instruction. We hold a unanimity instruction was not required because Butlers actions constituted a continuous course of conduct.
FACTUAL AND PROCEDURAL SUMMARY
Prosecution Evidence
Early in the morning, Escondido police officer Bruce Masten responded to a "911" call. The dispatcher informed Officer Masten that the caller had heard screaming, fighting and a sound like a body hitting the floor. Upon arriving at the scene, Officer Masten encountered Andrea Rich. Rich was visibly upset and explained to Officer Masten that she had been in a violent argument with her boyfriend during which he had damaged property in their apartment. Rich described the argument as strictly verbal and identified her boyfriend as Butler. Officer Masten learned from dispatch that Butler had a violent past, including a record for domestic abuse, and had a Fourth Amendment waiver.
During Officer Mastens conversation with Rich, Officer David Bishop arrived on the scene. Butler then appeared on the balcony in front of the apartment. Officer Masten called up to Butler and asked to speak with him. Butler responded in an angry manner and went back into the apartment and slammed the door.
Because police protocol requires officers to talk to both parties where domestic violence may have occurred, the officers went up the stairs to the apartment to contact Butler. The uniformed officers identified themselves and knocked on the door to the apartment several times, asking Butler to come out to talk. Butler refused to open the door and shouted obscenities at the officers. Butler then approached a window of the apartment, picked up a stick and threatened the officers.
At this point Rich handed her apartment key to the officers. One of the officers inserted the key into the lock but was unable to open the door because Butler was holding the lock on the inside. Butler continued to shout obscenities, then told the officers to "Come on in."
Officer Masten opened the door and saw Butler retreating toward the back of the apartment. The officers asked Butler to stop and stated they only wanted to talk with him. Butler refused to stop and retreated into the bathroom, locking the door behind him.
The officers asked Butler to open the door to the bathroom, but Butler refused. The officers tried the door handle, but finding it locked, kicked the door open and entered the bathroom. A struggle ensued, and Butler was placed in handcuffs. Butler continued to struggle after being placed in handcuffs and lunged at Officer Bishop, driving himself and the officer into the bathtub. Officer Masten pulled Butler from the bathtub and both officers escorted him to the patrol car.
At the car, Butler tried to kick Officer Masten and another struggle occurred. The officers subdued Butler and placed leg restraints on him. The officers then placed Butler in the patrol car and took him to the police station.
Defense Evidence and Prosecution Rebuttal
In his defense, Butler offered only Richs testimony. Rich, who had married Butler between the time of the arrest and the trial, testified that the officers ran up the stairs to the apartment with their weapons drawn. She claimed that Officer Masten had drawn a taser gun and that Officer Bishop was holding pepper spray. Rich also testified that the officers immediately began kicking the front door of the apartment. On rebuttal Officer Masten testified that he is not authorized to carry a taser and has never carried one. Officer Bishop likewise testified that he was not carrying his pepper spray or his taser when he went up to the apartment.
Rich also testified that once in the apartment, the officers kicked in the bathroom door without saying anything to Butler or checking to see if the door was locked. She further said that at the patrol car, the officers hit Butlers head against the car, threw him to the ground, placed shackles on him and began kicking him. Rich claimed she attempted to file a police report regarding this incident, but there was no evidence that she in fact filed a report.
DISCUSSION
A defendants constitutional right to a unanimous jury verdict requires that the jurors unanimously agree the defendant is criminally responsible for a discrete unlawful act. (People v. Thompson (1995) 36 Cal.App.4th 843, 850.) Where the evidence demonstrates more than one unlawful act that could support a charged offense, either the prosecution must elect upon which act to rely, or the jurors must be given a unanimity instruction telling them they must unanimously agree which act constituted the crime. (Ibid.) The unanimity requirement is designed "to eliminate the danger that the defendant will be convicted even though there is no single offense which all jurors agree the defendant committed. [Citation.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
Butler argues the unanimity instruction was required because there were three distinct acts that could form the basis for a conviction of resisting an executive officer by means of threat or violence: (1) his refusal to let the officers into the apartment, including brandishing a stick and threatening the officers; (2) his struggle with the officers in the bathroom; and (3) his struggle with Officer Masten by the patrol car.
We reject this argument because this case falls within the continuous course of conduct exception. This exception arises where the unlawful acts are so closely connected they form a single transaction, or where a statute defines an offense as continuous in nature. (People v. Thompson, supra, 36 Cal.App.4th at p. 851; People v. Avina (1993) 14 Cal.App.4th 1303, 1309.) This exception applies because Butlers actions, which occurred within a five-minute period, reflected a single unified course of conduct. Although Butler resisted the officers in different ways, his conduct was ongoing and could not be fairly divided into discrete criminal events. Butler offered the same defenses to each act and provided no reasonable basis for the jury to distinguish one defense from the other.
Butler contends this exception is inapplicable because it applies only "where the statute defining the crime may be interpreted as applying, on occasion, to an offense which may be continuous in nature . . . ." (People v. Madden (1981) 116 Cal.App.3d 212, 218.) However, the California Supreme Court has not limited the exception in this manner. (See People v. Crandell (1988) 46 Cal.3d 833, 875, disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; see also People v. Diedrich (1982) 31 Cal.3d 263, 282.)
Alternatively, Butler argues resisting arrest "is analogous to the crimes of assault or battery" and "the continuous conduct exception does not apply to separate but connected assaults or batteries upon . . . separate victims. . . ." (See, e.g., People v. McNeill (1980) 112 Cal.App.3d 330, 335-336 [continuous conduct exception not applicable to assault crime where defendant fired shots at four separate victims standing together].) The analogy fails because the crime charged in this case concerned an interference with executive authority as opposed to an assault crime against a particular victim. (Pen. Code, § 69.) Thus, even though the two officers were present at the scene, Butlers conduct toward the officers was part of the same crime, directed against the officers collective authority to perform their official duty to respond to the domestic violence incident by calming Butler down and talking with him. (See People v. Jefferson (1954) 123 Cal.App.2d 219, 221.) Under these circumstances, the fact that Butler directed his criminal conduct against more than one officer did not trigger the need for a unanimity instruction. (Ibid.)
Butler additionally contends the continuous conduct exception is inapplicable here because his acts were separated by intervening circumstances. In support, Butler relies on People v. Moreno (1973) 32 Cal.App.3d Supp. 1, 9, a case in which the defendant had been violent when he was initially arrested, then calmed down during a 30-minute car ride to the police station and then again became violent while being booked. (Id. at p. 4.) As a result of these actions, the defendant was charged with and convicted of one count of resisting arrest. (Id. at pp. 4-5.) The appellate division of the superior court held a unanimity instruction was required under these circumstances because the defendants two violent acts were separated by intervening circumstances. (Id. at pp. 8-9.) The court emphasized that the two incidents were more than 30 minutes apart, the defendant had completely calmed down and ceased his criminal activity, the second incident occurred several miles away from the first incident, and there was a different set of witnesses at the second incident. (Ibid.)
Butler contends the evidence here places him within the ambit of Moreno because Officer Masten testified that during the incident Butler "was kind of up and down. He was crying. It was just kind of a mixed bag of tricks." Based on this testimony, Butler asserts that he, like Moreno, was able "to compose himself" between his acts and "reflect on the situation before again assaulting the officers."
The circumstances in this case are materially distinguishable from Moreno. Unlike Moreno, all three incidents occurred during a five-minute period, Butler did not completely calm down, and the incidents took place within a short distance of each other. Further, the Moreno court stated it found no cases requiring an instruction where a series of incidents were separated by less than 15 minutes. (People v. Moreno, supra, 32 Cal.App.3d at p. 9.) Similarly, we have found no cases where incidents committed in the same vicinity and so close in time required a unanimity instruction. (See People v. McIntyre (1981) 115 Cal.App.3d 899, 910 [single sexual assault where sexual intercourse followed "within a few minutes" by oral copulation]; People v. Mota (1981) 115 Cal.App.3d 227, 233 [unanimity instruction not required for continuous acts of rape within one hour in the same location]; People v. Jefferson, supra, 123 Cal.App.2d at p. 221 [instruction not required where during a 10- to 15-minute confrontation the defendant twice assaulted a police officer with two different knives].)
Finally, Butler claims that he presented factual and legal defenses that could have been analyzed differently for each separate violent act. Specifically, he claims that he presented evidence that he did not actually commit any of the acts and that the police officers were engaged in an unlawful detention or used excessive force. Butler supports his position with People v. Thompson, supra, 36 Cal.App.4th 843 and People v. Laport (1987) 189 Cal.App.3d 281. These cases are inapposite.
The Thompson defendant was convicted of diverting construction funds over a two year period. During trial, the prosecutor distinguished between the various means used by the defendant to divert the funds: overbilling and applying the excess to other accounts; accepting money for a particular item but not purchasing the item; and taking money for personal use. (People v. Thompson, supra, 36 Cal.App.4th at p. 852.) The Thompson defendant offered different defenses to each method. He claimed he did not know the amounts paid to suppliers were misapplied; he used the funds for the particular item for another legitimate use; and he was entitled to draws. (Ibid.) Similarly, the Laport defendant was charged with committing grand theft over a 10-month period. The evidence showed the defendant, a business manager for an art gallery, embezzled $18,000 by writing checks to herself and stole paintings worth over $5,000. (People v. Laport, supra, 189 Cal.App.3d at p. 282.) The Laport defendant claimed she believed she was entitled to the checks because of her intimate relationship with the gallery owner and she took the paintings home to show a client. (Ibid.)
In contrast to Thompson and Laport, Butlers actions took place over a period of minutes rather than months and his defenses did not change. Further, Butlers defenses depended entirely on the jurys evaluation of Richs testimony. It is not reasonable to conclude that the jury would have found Richs testimony not credible regarding some of the acts, but found her testimony credible with respect to others. Thus, a unanimity instruction was not required.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P.J. and BENKE, J.