Opinion
C083982
08-16-2018
THE PEOPLE, Plaintiff and Respondent, v. RONNIE LEE KYLES, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16F3415)
In October 2016, a jury found defendant Ronnie Lee Kyles, Jr., guilty of inflicting injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)), and resisting an executive officer by force or violence (§ 69). In separate proceedings, defendant admitted to two prior strikes. (§ 1170.12.)
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court prejudicially erred by failing to give a unanimity instruction with respect to the assault count. We disagree with that contention; however, we will modify the judgment to strike an unauthorized fee and direct the abstract of judgment be corrected when amended.
FACTUAL AND PROCEDURAL BACKGROUND
On May 27, 2016, defendant and D.P., who had been dating "on-and-off" for a year, got into an argument. Defendant broke D.P.'s cell phone and strangled her so hard that she "s[aw] stars" and had difficulty breathing. D.P. fled the apartment crying and asked for the help of her downstairs neighbor, Dustin P.
At D.P.'s request, Dustin returned with her to her apartment. Defendant argued with Dustin, who stood in the doorway. Defendant and Dustin went outside, still arguing, with Dustin asking defendant to return D.P.'s keys. Eventually getting her keys, D.P. returned inside the apartment, locked the door, and remained there until the police arrived.
Outside in the meantime, as Dustin stood only a few feet away from the stairs with his back to defendant, defendant hit him on the side of the head. Dustin turned around and defendant grabbed him and tried to push him through a neighbor's window. Defendant then pushed Dustin again, causing him to fall halfway down the stairs. A few seconds later, defendant kicked Dustin so that he fell down the remainder of the stairs. Dustin suffered bruises on his shoulder, abrasions to his arm, leg, and back, and back pain. When the police arrived, defendant resisted the officers' attempts to handcuff him.
Defendant did not testify at trial, but called one witness, who testified that defendant had indeed punched Dustin in the face after Dustin aggressively advanced on defendant, and the punch had caused Dustin to fall "dramatically" down the stairs.
At trial, the prosecutor argued defendant committed assault likely to cause great bodily injury by hitting Dustin in the back of his head, pushing him halfway down the stairs, then following him down the stairs (because defendant was "not willing to give up the fight"), and kicking him down the rest of the stairs. Defense counsel argued defendant acted in self-defense when he punched Dustin, causing Dustin to fall backward on the stairs.
After closing arguments concluded, the trial court noted it had discussed a unanimity instruction with the parties and stated in part: "I didn't regard unanimity in this trial as especially helpful to [defendant] because it would essentially give [the prosecutor] two opportunities to convict him of the same crime; the--based on the incident that may have developed at the top of the stairs, and then the second time when there was the event or events that took place at the middle of the staircase, or somewhere down the stairway--staircase." Apparently based on earlier off-the-record discussions, the court then represented that defense counsel agreed with the court's analysis, and "both sides agree[d]" that the court "didn't need to read the unanimity instruction" and thus the trial "went without" one. The court then asked for any additions, comments, or clarifications, and defense counsel responded that he had none.
In January 2017, the trial court denied defendant's request to strike his prior strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court sentenced defendant to prison for an aggregate term of 11 years four months and ordered various fines and fees, including a $500 domestic violence fee pursuant to section 1203.097, subdivision (a)(5). As relevant here, the court also imposed a $151 booking fee and a $250 probation report fee, which are not reflected on the abstract of judgment (§ 1203.1b, subd. (a)), and awarded defendant 453 days of custody credit; the abstract of judgment reflects 454 days of custody credit.
Defendant timely appealed.
DISCUSSION
I
Unanimity
Defendant contends the trial court erred in failing to sua sponte instruct the jury on unanimity pursuant to CALCRIM No. 3500. The Attorney General responds that no instruction was needed as defendant's assaultive actions (the punch, followed by the push and kick) constituted a continuous course of conduct. We agree with the latter position.
The pattern instruction at issue states: "The defendant is charged with <insert description of alleged offense> [in Count ___] [sometime during the period of ___ to ___]. [¶] 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." (CALCRIM No. 3500.) --------
A trial court should give a unanimity instruction even absent a request where the circumstances of the case so dictate. (People v. Covarrubias (2016) 1 Cal.5th 838, 877.) " '[W]hen 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.' " (Id. at p. 878.) "A unanimity instruction is not required where the offenses are so closely connected to form a single transaction or where the offense itself consists of a continuous course of conduct. . . . '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.]' " (People v. Thompson (1995) 36 Cal.App.4th 843, 851.)
Here, the continuous conduct rule applies. According to the People's evidence, defendant hit Dustin at the top of the stairs, pushed him halfway down the stairs, and then kicked him down the remaining stairs. These acts occurred during a very short period of time. No party testified or argued they were separate acts. Indeed, defense counsel argued that there was only one act of violence--the admitted punch--that then caused Dustin to fall down the stairs on his own, and that self-defense was applicable to the entire course of conduct. There was no reasonable basis for the jury to distinguish between the punch and the subsequent push and kick, thus no unanimity instruction was required. (See People v. Champion (1995) 9 Cal.4th 879, 932, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860 [unanimity instruction was not required where the victim testified the defendant raped her in a bathroom and then returned shortly thereafter to rape her again, and defendant offered no evidence tending to show that he committed one of the rapes but not the other, making it "inconceivable that the juror would not also conclude that [the defendant] also committed the second rape of the same victim"].)
Further, in finding defendant guilty, the jury expressly rejected defendant's theory of self-defense, as his evidence and argument had admitted the punch (but not the subsequent push and kick). It is simply not conceivable here that the jury found the push or kick constituted the assault, rather than the agreed-upon punch or the punch together with the rest of the conduct presented by the People's case.
Given our conclusions, we need not reach defendant's argument that his counsel provided ineffective assistance in failing to request such an instruction. (AOB 24)
II
Other Issues
Our review of the record reveals that the trial court imposed a $500 domestic violence fee under section 1203.097, subdivision (a)(5). That statute authorizes the imposition of the fee only when probation is granted. (§ 1203.097, subd. (a)(5); see also People v. Kirvin (2014) 231 Cal.App.4th 1507, 1520.) Because defendant was sentenced to prison, the fee was unauthorized and must be stricken.
We note two inconsistencies in the abstract of judgment. First, the trial court ordered 453 days of custody credit (227 actual and 226 conduct) (§ 4019), but the abstract of judgment reflects 227 conduct days for a total of 454 days of custody credit. Also, the abstract fails to include the $151 booking fee and a $250 probation report fee orally imposed by the court. (§ 1203.1b, subd. (a).)
Where there is a discrepancy between the oral pronouncement of judgment and the abstract, the former controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We direct the trial court to correct the abstract of judgment.
DISPOSITION
The judgment is modified to strike the $500 domestic violence fee. The trial court is directed to otherwise correct the abstract of judgment when amended to ensure that it accurately reflects the sentence orally imposed. A certified copy of the amended and corrected abstract should be forwarded to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
Duarte, Acting P. J. We concur: /s/_________
Hoch, J. /s/_________
Renner, J.