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People v. Gault

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Feb 3, 2012
B224925 (Cal. Ct. App. Feb. 3, 2012)

Opinion

B224925

02-03-2012

THE PEOPLE, Plaintiff and Respondent, v. JAMES MICHAEL GAULT, Defendant and Appellant.

Law Offices of Helen Simkins Irza and Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Deputy Attorney General, James William Bilderback II and Sonya Roth, Deputy Attorneys General for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. VA112760)

APPEAL from a judgment of the Superior Court of Los Angeles County. Roger Ito, Judge. Affirmed as modified.

Law Offices of Helen Simkins Irza and Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Deputy Attorney General, James William Bilderback II and Sonya Roth, Deputy Attorneys General for Plaintiff and Respondent.

Defendant and appellant James Michael Gault appeals from his conviction of two counts of making criminal threats. He contends that the trial court erred in failing to give sua sponte, an instruction regarding unanimity, such as CALCRIM No. 3500. Defendant also contends that the trial court applied an incorrect formula in calculating custody credit. We agree that the custody credit was incorrect and modify the judgment to award an additional 75 credits. Upon concluding that no unanimity instruction was required and that defendant was not prejudiced by the omission, we affirm the judgment as modified.

BACKGROUND

Defendant was charged with two counts of criminal threats in violation of Penal Code section 422 (counts 1 and 2), and two counts of felony vandalism in violation of section 594, subdivision (a) (counts 3 and 4). The information alleged as to all counts that defendant had suffered a prior conviction of assault with a deadly weapon, in violation of section 245, subdivision (a), a strike within the meaning of the "Three Strikes" law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). The same prior conviction was alleged as to all counts as a prison prior pursuant to section 667.5, subdivision (b), and as a serious felony as to counts 1 and 2, pursuant to section 667, subdivision (a)(1).

All further statutory references are to the Penal Code, unless otherwise indicated.

Defendant's first trial ended in a mistrial in March 2010, and the second trial began the following May. At the second trial, Daniel Braun (Braun) and his girlfriend Jenifer Draper (Draper) testified regarding the events of September 15, 2009.

At approximately 9:00 p.m., Braun was in bed when he and Draper heard defendant scream from outside, "Danny, Danny, come on out. Come out. You're dead." Braun was afraid when defendant said these words, and he called the police. Braun had known defendant for several years and defendant was married to Braun's sister Deborah. Deborah had accused defendant of stabbing her in 2007, the same year that Braun had also heard that defendant had beaten a neighbor with a bat.

About an hour later, defendant called Braun's cell phone, which Draper answered and transferred to the speaker. Both Braun and Draper heard defendant say, "This is just a friendly reminder. You guys are dead." Draper thought she heard defendant add, "Danny and Jen," but the end of the call was unclear due to static. Draper was terrified as she believed that defendant was going to kill them. Draper had also heard that defendant had stabbed Braun's sister and had put a neighbor into a coma by beating him with a baseball bat.

A neighbor, Kenneth Hahn, testified that the same night about midnight, he heard "smashing" noises and saw defendant running from Braun's driveway. Draper's minivan and Braun's truck were vandalized that night.

The jury found defendant guilty of counts 1 and 2 as charged and acquitted defendant of counts 3 and 4. In a bifurcated court trial, the prosecution submitted evidence that defendant had been convicted of assault with a deadly weapon, in violation of section 245, subdivision (a), for which he had been sentenced to prison. The trial court found true the prior strike allegations. On May 28, 2010, the trial court denied probation and sentenced defendant to a total of 11 years in prison with 297 days of presentence custody credit, calculated as 248 actual days in custody, plus 49 days of good time/work time credit. Defendant was also ordered to pay mandatory fines and fees. Defendant filed a timely notice of appeal from the judgment.

DISCUSSION

I. Unanimity Instruction

Defendant contends that although the evidence showed that defendant made two threats, the prosecution did not clearly elect to proceed on one of them, and that the trial court erroneously failed to give a unanimity instruction in the form of CALCRIM No. 3500.

CALCRIM No. 3500 instructs: "The defendant is charged with [relevant counts described]. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."

"In a criminal case, a jury verdict must be unanimous. [Citations.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] 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. [Citations.] [¶] 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.' [Citation.]" (Ibid.)

The prosecution must make an election upon defendant's demand, and in the absence of a demand or its denial, the court must give the unanimity instruction sua sponte in the appropriate case. (People v. Salvato (1991) 234 Cal.App.3d 872, 882 (Salvato).) "If the prosecution is to communicate an election to the jury, its statement must be made with as much clarity and directness as would a judge in giving instruction." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1539 (Melhado).)

A criminal threat is a statement, willfully made with the specific intent that it be taken as a threat to commit a crime which "will result in death or great bodily injury to another person . . . even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety . . . ." (§ 422.)

At the preliminary hearing the prosecutor elected to proceed against defendant with two threats: one made to Braun earlier in the evening outside Braun's home; and the other made later by telephone to Draper. At trial, the prosecutor made the election clear in summation when he stated:

"[L]et's look at these elements I have to prove, that this defendant willfully threatened Danny and Jenifer. 'Willfully' means that he did it on purpose. It wasn't an accident. That's clear. He threatened to kill them. He said, 'You're dead.' He did this orally at the scene to Danny as in count 1, and then over the phone to Jennifer in count 2, that he intended this statement to be understood by the victims as a threat. That's the only logical conclusion here."

Defendant contends that the prosecutor's argument amounted to placing "mere emphasis upon a specific act" without making the election sufficiently direct, because a very short while later he said, "He terrorized them that entire night, threatening them two different times and coming back and destroying their cars over a three-hour period." In essence the prosecutor argued that there were two threats at two times against "them," although defendant was charged with just one threat against one person at each of the two times of night. The prosecutor's word choice may have been careless, but it could not reasonably be interpreted as contradicting the election he had directly and clearly communicated to the jury moments before.

Defendant compares the facts to those in Melhado, where two criminal threats were proven, one at 9:00 a.m., and another at 11:00 a.m., but the prosecutor failed to express an election. (Melhado, supra, 60 Cal.App.4th at p. 1535.) The respondent unsuccessfully argued that because the prosecutor quoted only one of the threats, the quoted threat clearly expressed an election. (Id. at pp. 1535-1536.) There was more than one threat in Melhado, as here, but the prosecutor's argument in Melhado bears no similarity to the argument in this case. Here there was no mere implication or emphasis; the prosecutor clearly communicated to the jury that count 1 addressed the threat against Braun outside Braun's house and that count 2 referred to the telephone call that Draper answered. No unanimity instruction was required. (See People v. Russo, supra, 25 Cal.4th at p. 1132.)

Moreover, the unanimity requirement as explained in CALCRIM No. 3500 would have confused the jury by incorrectly stating that evidence of more than one act was presented to prove each threat. Defendant was charged in count 1 with a threat against Braun and in count 2 with a threat against Draper. To prove count 1 the prosecution presented evidence of the threat committed around 9:00 p.m., and to prove count 2, the prosecution presented evidence of the telephone threat later that night. The evidence showed just one act -- the earlier shouts -- was directed to "Danny"; no evidence suggested that defendant even knew Draper was there at that time or that he intended to threaten her. Thus, since no statement was made to Draper at that time, defendant threatened only Braun during the earlier incident.

The telephone threat was directed to Draper, not Braun, because defendant spoke to Draper after she answered the telephone. Defendant makes much of respondent's erroneous assumption that defendant called Draper's cell phone, but it remains that it was Draper who answered the call, and there was no evidence that defendant thought he was speaking to Braun. Nor did the evidence suggest that defendant knew Draper had put the call on the speaker. Thus, the prosecution presented evidence of one threat against Braun and a second, separate threat against Draper, rather than two threats against either or both.

Regardless, had the trial court erred in failing to give a unanimity instruction, we would find the error harmless under either the test of People v. Watson (1956) 46 Cal.2d 818, 836, or Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).

The courts of appeal are split as to the applicable test of harmless error. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188.)

The jury was instructed that it could consider evidence of defendant's voluntary intoxication to determine whether he acted with the specific intent that his alleged statements be understood as threats, and defense counsel argued that defendant was intoxicated that evening. Defense counsel also argued that because Braun and Draper went to sleep after the second threat, they did not experience sustained fear. By rejecting this defense, the jury necessarily believed the victims' claims that they had each experienced sustained fear.

We find merit in respondent's argument that having resolved the issue of credibility against defendant, the jury would not have found defendant guilty of making one criminal threat but not the other. The failure to give a unanimity instruction is harmless if the defense is based solely on credibility and the verdict establishes that the jury resolved the issue against the defendant. (See People v. Wolfe, supra, 114 Cal.App.4th at pp. 188-189 [applying the Chapman test]; People v. Thompson (1995) 36 Cal.App.4th 843, 853; People v. Deletto (1983) 147 Cal.App.3d 458, 466.) Defendant argues that this rule of harmless error does not apply here because there was a single defense in the cited cases, and he proffered two defenses, intoxication and credibility. However, since the jury rejected the defense of intoxication as to both threats and believed the victim witnesses concerning the facts and their fear, a unanimity instruction would not have changed the outcome.

The jury was instructed: "Each of the counts in this case is a separate crime. You must consider each count separately and return a straight verdict for each one." The jury was also instructed that its verdict must be unanimous, that all jurors must agree, and that the People must prove defendant's guilt beyond a reasonable doubt. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions. [Citation.]" (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Given these instructions and the prosecutor's statement of the facts underlying each count, we conclude beyond a reasonable doubt that neither the absence of a unanimity instruction such as CALCRIM No. 3500 nor the prosecutor's reference to "threatening them two different times" contributed to the verdicts. (Chapman, supra, 386 U.S. at p. 24.)

II. Custody Credits

Defendant contends that he is entitled to 124 days of additional custody credit. Defendant spent 248 actual days in custody prior to sentencing. The trial court awarded 49 days of local good time/work time credit, limiting the number to 15 percent of actual time because defendant had been convicted of a serious, but not violent felony. The 15 percent limitation is applicable, however, only to violent felonies listed in section 667.5, subdivision (c). (§ 2933.1.) Defendant's offenses do not appear on that list.

Respondent contends that criminal threats are a serious felony under section 1192.7, subdivision (c)(38), thus disqualifying defendant from increased credit under section 4019 as amended January 25, 2010, by Senate Bill No. 18. (See former § 4019; Stats. 2009-2010, ch. 28, § 50.) However, defendant is seeking conduct credit under section 4019 as it read at the time he committed the offenses, September 15, 2009. (See Stats. 1982, ch. 1234, § 7, p. 4553.)

The provision of section 4019 denying credits to persons convicted of a serious felony listed in section 1192.7 was not in effect at the time of defendant's offense. Accordingly, it cannot constitutionally be applied to defendant. (See Weaver v. Graham (1981) 450 U.S. 24, 31, 35-36; cf. People v. Reyes (2008) 165 Cal.App.4th 426, 437.) At the time defendant committed the crimes, section 4019 provided that a term of six days would be deemed to have been served for every four days spent in custody for a prisoner confined in jail following arrest and prior to imposition of sentence for a felony conviction, unless the inmate refused to satisfactorily perform labor or comply with rules and regulations. We agree that under former section 4019, defendant was entitled to 124 days of conduct credits, calculated by dividing actual time by four, with the result multiplied by two. (See People v. Bravo (1990) 219 Cal.App.3d 729, 733.) Defendant was thus entitled to a total of 372 days of custody credit. The judgment must be modified accordingly. (See People v. Guillen (1994) 25 Cal.App.4th 756, 764.)

Defendant calculated the total in his opening brief as 272 days, but corrected his calculation in the reply brief.
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DISPOSITION

The sentence is modified to provide 75 days additional good time/work time credits, bringing the total presentence custody credits to 372, comprised of 248 actual days in custody, plus good time/work time credits of 124. The trial court is directed to prepare a new abstract of judgment reflecting the modified judgment and to forward a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

CHAVEZ

We concur:

______________________, P. J.

BOREN

______________________, J.

ASHMANN-GERST


Summaries of

People v. Gault

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Feb 3, 2012
B224925 (Cal. Ct. App. Feb. 3, 2012)
Case details for

People v. Gault

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAMES MICHAEL GAULT, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Date published: Feb 3, 2012

Citations

B224925 (Cal. Ct. App. Feb. 3, 2012)