Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Ruvolo, P. J.
Counsel for appellant James Claus Mitchell (appellant) has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this court’s attention. No supplemental brief has been filed by appellant personally.
FACTS AND PROCEDURAL BACKGROUND
Viewed in the light most favorable to the verdict, the evidence regarding the events underlying appellant’s convictions was as follows. Venus Rena McDonald lived with appellant in a romantic relationship for about eight months from July 2004 through sometime in February or early March 2005, when she went to stay at a girlfriend’s house, leaving most of her possessions behind, and continuing to see appellant occasionally. On March 15, 2005, she returned to appellant’s home, intending to retrieve her belongings, and slept there overnight.
The evidence at trial included McDonald’s testimony that on March 4, 2005, or a day or two later, appellant picked her up at her girlfriend’s house. Once outside, he pulled a gun on her, took her for a ride in his truck, threatened to kill her, pistol-whipped her, and would not let her out of the truck. They then went back to his house, where he took her into the bedroom and moved a large armoire or hutch in front of the door to prevent her from leaving. Appellant was not convicted of any of the charges related to this testimony.
Appellant awakened McDonald in the morning, informing her that he had packed up her things, and wanted to take her back to her girlfriend’s house. When she came downstairs, however, he appeared to be very angry, would not let her leave, and threatened her.
While appellant and McDonald were arguing, appellant’s longtime friend Nancy Simms arrived, and knocked on the door. Appellant told Simms he was going to kill McDonald, and picked up a candlestick as if to throw it or hit McDonald with it. Simms grabbed it from him, however, and he did not hit either of the women with it. Appellant then told Simms to leave, but she refused to leave McDonald alone with him. McDonald confirmed she did not want Simms to leave her alone.
In their testimony, McDonald and Simms differed as to the sequence of the events that occurred at appellant’s house that morning, but they both testified that the candlestick incident occurred.
McDonald tried to leave several times, and Simms tried to help her, but appellant kept pushing them to prevent them from leaving. During their scuffles, appellant knocked McDonald into a banister hard enough to break it, causing her to hit her head, ripping her blouse, and breaking her necklace.
Appellant asked Simms to remain in the living room while he talked with McDonald in the kitchen. Simms, who had been a victim of domestic violence in the past, became increasingly concerned due to the tone of appellant’s voice, and the fact that McDonald sounded scared. Simms heard appellant threaten to kill McDonald. She used her cell phone to call a friend to come to the house to help. Appellant heard her dialing the phone and called out that if she called the police, or if they came to the house, he would kill her. Appellant also threatened to kill McDonald, as well as her children and those of Simms. Simms heard some of appellant’s threats against her, but she was not afraid that appellant would actually hurt her or her children, as they had been good friends for many years.
McDonald again tried to leave, and while resisting appellant’s efforts to prevent her from doing so, kicked a hole in the wall near the front door with the heel of her shoe, further angering him. More scuffling between appellant and the two women ensued. Appellant went to the kitchen, where McDonald saw him open the drawer where the knives were kept. He returned with a knife in his hand. Appellant threatened McDonald, holding the knife against her ribcage, and then pulled it away and stabbed her on the side or back of her left upper thigh. He also kicked Simms hard enough to cause a bruise, though he did not hurt her seriously.
At that point, Simms and McDonald left the house, with the assistance of the friend whom Simms had called on her cell phone earlier. As the three women got into Simms’s car to drive McDonald to the hospital, appellant came out of the house, came up to the car, and smashed its front passenger window, where McDonald was sitting. McDonald said he used a gun to do so, but none of the other witnesses saw the gun. At that point, Simms was able to start the car, and the women drove away.
The emergency room doctor who treated McDonald testified that her leg wound required five internal sutures and seven external ones. Photographs of the wound, taken by the police in April 2005, were introduced in evidence.
On June 3, 2005, an amended information was filed charging appellant as follows: count one: assault on McDonald with a deadly weapon and with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1) ), with enhancements for personal use of a knife (§ 12022, subd. (b)(1)), and for personal infliction of great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)); count two: false imprisonment by violence of McDonald (§§ 236, 237), with an enhancement for personal use of a knife (§ 12022, subd. (b)(1)); count three, criminal threats against McDonald (§ 422), with an enhancement for personal use of a knife (§ 12022, subd. (b)(1)); count four, attempted criminal threats against Simms (§§ 422, 664); and count five, dissuading a witness by force or threat, as to Simms (§ 136.1, subd. (c)(1)). The crimes charged in counts one through five were all alleged to have occurred on or about March 16, 2005. The information also alleged, as an enhancement under section 12022.1, that at the time of the commission of all of the alleged offenses, appellant was on release from custody, on bail and/or on his own recognizance, in two specified pending felony cases.
All further statutory references are to the Penal Code unless otherwise noted.
The information used the phrase “criminal threats” in count three, but “attempted terrorist threats” in count four, to describe the crime defined by section 422. (Capitalization in original omitted.) Section 422 does not use the word “terrorist, ” however.
The information also included two counts stemming from the assault on McDonald that was alleged to have occurred on or about March 4, 2005, to wit, count six, inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)); and count seven, false imprisonment by violence (§§ 236, 237, subd. (a)). Appellant was acquitted on counts six and seven, and on a lesser included offense of attempted false imprisonment by violence as to count seven. The jury was unable to reach a verdict on any of the other lesser included offenses on which it was instructed as to those counts.
Counsel from the Contra Costa County Alternate Defender’s Office was appointed to represent appellant, and continued to do so through trial and sentencing. On September 23, 2005, appellant’s counsel filed a motion to dismiss count four of the information. The motion was denied on the ground that the evidence at the preliminary hearing “clearly create[d] a strong suspicion of an attempted criminal threat.”
Our record reflects that after his motion for new trial was denied, appellant attempted to obtain the services of retained counsel, and was given two continuances of sentencing for that purpose, but for reasons that do not appear on our record, no substitution of counsel was actually made.
On October 11, 2005, appellant’s counsel filed a motion under section 1538.5 to suppress the evidence seized during a warrantless search of his home on March 16, 2005. The prosecution opposed the motion on the ground that McDonald and Brown, both of whom also lived in the home, had voluntarily consented to the search. The motion was eventually heard on January 26, 2006, by the judge to whom the case was assigned for trial. After hearing the testimony of two police officers and Brown, and admitting into evidence a consent to search form signed by McDonald, the court denied the motion based on McDonald’s apparent authority to consent to the search.
On October 31, 2005, the trial court concluded an in camera review of unspecified documents provided by the City of Pittsburg Police Department and concluded that they should be provided to appellant’s counsel. On December 19, 2005, appellant’s counsel obtained an order requiring that Daniel Scott Bryant be transported to court from San Quentin State Prison to testify as a witness at appellant’s trial.
The presentation of evidence at appellant’s jury trial began on January 31, 2006, and concluded on February 7, 2006, with a brief reopening at the request of appellant’s counsel on February 8, 2006. On February 8, 2006, the jury was given CALCRIM instructions, including those on the elements of the charged crimes, plus lesser included offenses. The court also instructed the jury on the defenses of accident, self-defense, defense of property, and the right to use reasonable force to eject a trespasser.
The jury was charged, and given verdict forms, on the following lesser included offenses: on count one, battery and simple assault; on counts two and seven, attempted false imprisonment by violence or menace, and false imprisonment; on count six, simple battery on a cohabitant, simple battery, and simple assault. On count five, the lesser included offense of dissuading a witness without the use of force or threats was handled by giving the jury a special verdict form with a separate question on the element of use of force or threats.
Jury deliberations began on February 9, 2006, and the jury returned its verdicts on February 14, 2006. The jury found appellant guilty on counts one, two, and three (assault on, false imprisonment of, and criminal threats to McDonald on March 16, 2005), including the allegations of assault with a deadly weapon and with force likely to produce great bodily injury as to count one. The jury was unable to reach verdicts on the enhancements to counts one, two, and three for personal infliction of great bodily injury under circumstances involving domestic violence, personal infliction of great bodily injury, and personal use of a knife.
The jury also found appellant guilty on counts four and five (attempted criminal threats and intimidating a witness as to Simms on March 16, 2005). It also found true the additional allegations as to count five charging that appellant acted maliciously and used force or threats.
As already noted, the jury did not convict appellant on any of the charges related to counts six and seven.
The court declared a mistrial as to all of the counts and enhancements as to which the jury had been unable to reach a verdict. Appellant waived jury trial as to the enhancement for commission of the charged offenses while released on bail or his own recognizance. That enhancement was then tried to the court, and found true.
Appellant’s trial counsel filed a motion for new trial on May 11, 2006. He argued that the verdicts were inconsistent, and not supported by the evidence, because the jury’s guilty verdict on count one, finding assault with a deadly weapon and by force likely to produce great bodily injury, could not be reconciled with the jury’s failure to return a true finding on the enhancement on that same count for personal use of a knife. The trial court heard and denied the motion on May 31, 2006.
On the same day, the prosecution informed the court that it had elected to retry the unadjudicated great bodily injury enhancement. That trial never occurred, however, because on August 18, 2006, appellant entered into a plea agreement under which he pleaded no contest to specified charges in the two drug-related cases that were already pending at the time he committed the crimes for which he was convicted in the current case, in exchange for a total prison sentence of six years eight months on the current case plus the two drug offenses. As part of the plea agreement, the enhancements and lesser included offenses on which the jury had been unable to reach a verdict in the present case were dismissed on the prosecution’s motion, as was the enhancement for committing the current offenses while released from custody while the earlier drug cases were pending.
Specifically, appellant pleaded no contest to violations of Health and Safety Code sections 11383, subdivision (f) (possession of precursor chemical), and 11378 (possession of methamphetamine for sale).
After entering the plea agreement, appellant was sentenced to prison as follows: three years (the middle term) on count one; two years on count two, stayed under section 654; a consecutive term of eight months (one-third the middle term) on count three; one year on count four, stayed under section 654; a consecutive term of one year on count five; a consecutive term of sixteen months (one-third the middle term) on one of the drug offenses; and a consecutive term of eight months (one-third the middle term) on the other drug offense, for a total prison term of six years eight months, as specified by the plea agreement. The court also imposed a restitution fine of $1,200; a parole revocation fine of $1,200, stayed pending any revocation of parole; victim restitution in an amount to be determined; a court security fee of $140; and DNA testing. Appellant was awarded credit for time served of 366 days (244 actual days plus 122 days local conduct credits under section 4019). Appellant filed a timely notice of appeal on September 25, 2006.
DISCUSSION
Although no issues have been briefed, appellant’s counsel did point out two issues in compliance with his duty under Anders v. California (1967) 386 U.S. 738, 744 to “refer[] to anything in the record that might arguably support the appeal. . . .” Both issues relate to the trial court’s failure to give unanimity instructions sua sponte as to two counts—count one and count three—as to each of which there was more than one basis upon which appellant arguably could have been convicted.
On count one, the charge of assaulting McDonald with a deadly weapon and/or with force likely to cause great bodily injury, appellant notes that there was evidence supporting the conclusion that appellant assaulted McDonald in four possible ways: he held up a candlestick holder as if he were going to hit her with it; he threw her into a banister with such force as to break the banister and cause a lump on her head; he stabbed her in the leg with a knife; and he used a gun to smash the window of Simms’s car adjacent to where McDonald was sitting. However, only one of these assaults—that with the knife—involved both a deadly weapon and great bodily injury. The jury found it to be true both that appellant used a deadly weapon in the commission of the crime, and that he assaulted McDonald with force likely to cause great bodily injury. Moreover, in her closing argument on this count, the prosecutor relied only on the knife stabbing as the basis on which she urged the jury to convict appellant. Accordingly, we are satisfied that even if the failure to give a unanimity instruction was error, in light of the prosecutor’s argument (see People v. Mayer (2003) 108 Cal.App.4th 403, 418-419), it was harmless beyond a reasonable doubt.
Appellant’s trial counsel conceded, during the argument on his motion for new trial, that the unanimity instruction was not required for this reason.
On count three, the charge of making criminal threats against McDonald, appellant notes that there was evidence that appellant threatened McDonald on at least two occasions during the morning of March 16, 2005—first before Simms arrived, and then again while Simms was present. However, our review of the record demonstrates that both threats were part of a single course of conduct that took place entirely in the same location, and lasted only a short period of time, during which appellant was engaged in a continuous verbal and physical assault on McDonald. Accordingly, under the continuous conduct doctrine, no unanimity instruction was required on this count. (See, e.g., People v. Mitchell (1986) 188 Cal.App.3d 216, 222; People v. Mota (1981) 115 Cal.App.3d 227, 231-234.)
Upon our independent review of the entire record, we conclude that there are no meritorious issues to be argued, or that require further briefing on appeal. Appellant was represented by counsel at all stages of the proceeding, and nothing on the face of the record indicates that counsel’s performance failed to meet constitutional standards of adequacy or effectiveness. Our review of the trial transcript discloses substantial evidence to support all of the jury’s guilty verdicts and true findings on the enhancements, as well as the trial judge’s true finding on the enhancements for crimes committed while on release on own recognizance or bail.
Appellant’s motion for new trial was properly denied. As the trial court correctly noted, when a jury’s verdict of guilty complies with correct instructions and is supported by substantial evidence, the fact that it is arguably inconsistent with other verdicts favorable to the defendant is not grounds for overturning it. (United States v. Powell (1984) 469 U.S. 57, 64-69; People v. Lewis (2001) 25 Cal.4th 610, 655-656; People v. Federico (1981) 127 Cal.App.3d 20, 31-33.)
The sentence imposed was in accord with appellant’s posttrial plea bargain and with the strictures imposed by California law. No aggravated terms were imposed, so there is no issue in this case under Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856]. The trial court’s sentencing choices were supported by substantial evidence and within its discretion. The fines and penalties imposed were authorized by law.
DISPOSITION
The judgment is affirmed.
We concur: Reardon, J., Rivera, J.