Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD213670, Michael D. Wellington, Judge. Affirmed in part; reversed in part; remanded for resentencing.
AARON, J.
I.
INTRODUCTION
A jury found Jon William Quick guilty of stalking (count 1) (Pen. Code, § 646.9, subd. (a)); shooting at an inhabited dwelling (count 2) (§ 246); assault with a deadly weapon (count 3) (§ 245, subd. (a)(1)); vandalism causing damage less than $400 (count 4) (§ 594, subds. (a), (b)(2)(A)); possessing or igniting a destructive device (count 5) (§ 12303.3); arson (count 6) (§ 451, subd. (d)); two counts of vandalism causing damage greater than $400 (counts 7 & 8) (§ 594, subds. (a), (b)(1)); and hit-and-run driving (count 9) (Veh. Code, § 20002, subd. (a)). The jury also found that Quick was armed with a firearm (§ 12022, subd. (a)(1)) and personally used a deadly weapon (§ 12022, subd. (b)(1)) in the commission of count 1; and that Quick personally used a firearm (§ 12022.5, subd. (a)) in the commission of counts 1 and 3. Prior to trial, Quick admitted that he had suffered a prior conviction that qualified as a serious felony prior (§ 667, subd. (a)(1)), a strike prior (§§ 667, subds. (b)-(i), 1170.12, 668), and a prison prior (§ 667.5, subd. (b)). The trial court sentenced Quick to an aggregate term of 19 years in prison.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Quick contends that the trial court erred in failing to provide a unanimity instruction on the stalking charge (count 1) (§ 646.9, subd. (a)). We conclude that any error in failing to provide such an instruction was harmless beyond a reasonable doubt. The parties also raise several claims of sentencing error. The People claim that the trial court imposed an unauthorized sentence by striking the punishment for the section 12022.5, subdivision (a)(1) firearm enhancement on count 1. Quick concedes the error. Quick contends that the trial court erred in staying, rather than striking, the prison prior sentence enhancement (§ 667.5, subd. (b)). Quick also contends that neither the minute order nor the abstract of judgment conform to the trial court's oral pronouncement of sentence on certain counts. The People concede these errors. We vacate the sentence, remand the matter for resentencing, and affirm the judgment in all other respects.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's evidence
Quick and T.C. began dating in October 2006, and the two began to live together approximately three or four months after that. T.C.'s son, T.C.'s roommate Terry A., and Terry A.'s daughter, also lived in the residence. During the middle of March 2008, T.C. asked Quick to move out because the two had been fighting and arguing frequently. Quick moved out of the residence at the end of March.
1. Count 8 (vandalism causing damage greater than $400) and count 9 (hit-and-run driving)
After Quick moved out, he continued to call and send text messages to T.C. regularly. T.C. estimated that Quick sometimes called her more than 20 times a day, and said that Quick would also send her more than 20 text messages a day. Occasionally, T.C. would respond to Quick's calls and messages, and the two would often argue. Quick wanted to know whether T.C. was romantically involved with anyone. Quick would unexpectedly appear at T.C.'s residence on occasion.
On April 20, Quick came to T.C.'s residence and requested that she return some personal items that Quick had purchased for her. T.C. gave Quick a slow cooker, some clothes, and a wardrobe. Quick ripped the doors off the wardrobe, and threw the wardrobe doors and the slow cooker into a nearby canyon. Quick placed the clothes on T.C.'s car and urinated on the clothes. Quick then got into his car, backed his car into T.C.'s car, honked his horn, and drove away. Quick caused approximately $2,800 worth of damage to T.C.'s car.
2. Count 5 (possessing or igniting a destructive device), count 6 (arson), and count 7 (vandalism causing damage greater than $400)
On April 26, in the early afternoon, Quick came to T.C.'s residence and knocked on her bedroom window. T.C. did not want to speak with Quick, because he made her nervous. T.C. went to get her roommate Terry A., and Terry A. spoke with Quick for about an hour. During their conversation, Quick told Terry A. that T.C. should go to her mother's house that evening, and said that he was not responsible for what might happen if T.C. did not leave her house. Later that afternoon, T.C. received a message from Quick telling her that she needed to go to her mother's house. T.C. was frightened because she did not know what would happen next. Approximately an hour later, T.C. received a voice message from Quick in which he said something like, "You haven't left yet." Based on this comment, T.C. was concerned that Quick was watching her.
At approximately 9:00 p.m. that evening, T.C. heard a loud boom coming from her bedroom. T.C., her son, Terry A., and one of Terry A.'s friends ran to T.C.'s bedroom. T.C. saw that her bedroom window was broken, and that there was a fire in the room. On a couch, T.C. saw a bottle that contained liquid. There was a cloth sticking out of the bottle. T.C. threw the bottle back out of the window. Police later determined that the bottle was made of glass, and that it contained gasoline and a partially burned wick. The day after the incident, Quick sent T.C. a text message that said, "I hope you slept well last night."
3. Count 4 (vandalism causing damage less than $400)
On May 13, in the late afternoon, T.C. and her son heard a sound outside their residence. T.C., her son, and a friend of the family went outside the residence to investigate, but did not see anything. Shortly thereafter, T.C.'s son and another family friend located Quick's car parked nearby. T.C.'s son called T.C. on her cell phone. T.C. went to Quick's car. The group remained in the area where Quick's car was parked for about 30 minutes to see whether Quick would return to his car. Quick did not return. The group went back to T.C.'s residence. When they arrived at the residence, T.C.'s son and the family friend saw some large concrete slabs in the backyard. T.C.'s son and the friend began to throw the slabs into some bushes where they suspected Quick was hiding in an attempt to "scare him out." Quick did not emerge from the bushes. At approximately 2:00 o'clock the following morning, T.C. was awakened by the sound of a concrete slab crashing through T.C.'s bedroom window. Later that day, T.C. went to the courthouse and obtained a temporary restraining order against Quick.
4. Count 2 (shooting at an inhabited dwelling) and count 3 (assault with a deadly weapon)
On May 15, T.C. received several voice messages from Quick. Although T.C. had not spoken with Quick since April 20, she decided to call him and tell him to leave her alone. T.C. called Quick and left a voice message telling him that their relationship was over and to leave her alone. Quick called T.C. back several times but T.C. did not answer her phone. Quick left numerous voice messages. T.C. estimated that Quick called her approximately 40 times that day. Quick also sent T.C. several text messages that day. In one message, Quick stated, "I am sick. Trust me. I will see you within four days. Text or call me. It would be within your best interest to do it. Hope to hear from you. If not, wow."
At 8:43 p.m. that night, a police officer served Quick with the temporary restraining order that T.C. had obtained the previous day. At approximately 9:00 p.m., T.C. looked out of a bathroom window and saw Quick crouching outside her bedroom window. T.C. yelled, "Hey, Quick." Quick turned toward T.C. for a moment, and then walked away. Less than two minutes later, T.C. heard three gunshots. T.C. and the other occupants of the residence scrambled for cover and called the police.
Police discovered two portions of bullets inside T.C.'s residence and a bullet hole in the wall of the residence. A homeless man who was camping in a nearby canyon heard the gunshots and identified Quick as the person he saw running from the canyon. Police arrested Quick later that evening and performed a gunshot residue test on his hand. Quick had seven particles of gunshot residue on his right hand.
5. Count 1(stalking)
During closing argument, as discussed in detail in part III.A.3, post, the prosecutor explained that the evidence of Quick's harassing and threatening conduct discussed above, in connection with Quick's commission of counts 2 through 9, formed the basis of the stalking charge (§ 646.9, subd. (a)) in count 1.
6. Domestic violence propensity evidence
Quick's former wife, D.Q., testified that she and Quick separated in March 2002. One evening in March 2003, D.Q. spent the night at a male friend's house. The following morning, Quick approached D.Q. as she was leaving the friend's house and walking to her car. Quick hit D.Q. in the face, called her a "bitch" and a "slut, " and kicked her several times. D.Q. suffered bruises and black eyes from the beating, and has a scar across her nose as a result of the attack.
B. The defense
Quick did not testify at trial and did not call any witnesses. The thrust of defense counsel's closing argument was that the prosecution had not established that Quick was the perpetrator of the crimes charged in counts 2 through 7. In addition, in an apparent reference to count 1 (stalking) (§ 646.9, subd. (a)), defense counsel argued, "[Quick] was always spouting off, always saying things, but they weren't worried."
With respect to count 9 (hit-and-run driving) (Veh. Code, § 20002, subd. (a)), defense counsel argued that Quick had not failed to leave his name or telephone number, as required, in the wake of an accident because it was clear to T.C. who had caused the accident. With respect to count 8 (vandalism causing damage greater than $400)(§ 594, subds. (a), (b)(1)), counsel questioned the validity of T.C.'s damage estimate and suggested that Quick may have accidently hit T.C.'s car.
III. DISCUSSION
A. Any error that the trial court committed in failing to provide the jury with a unanimity instruction on count 1 (stalking) (§ 646.9, subd. (a)) was harmless beyond a reasonable doubt
Quick claims that the trial court committed reversible error in failing to provide the jury with a unanimity instruction on count 1 (stalking) (§ 646.9, subd. (a)). Assuming for purposes of this opinion that the court erred in failing to provide such an instruction, any such error was harmless beyond a reasonable doubt.
1. The trial court's sua sponte duty to provide a unanimity instruction
If one criminal act is charged, but the evidence tends to show the commission of more than one such act, "either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "Where no election is made, the court has a duty to instruct sua sponte on the unanimity requirement. [Citation.]" (People v. Curry (2007) 158 Cal.App.4th 766, 783 (Curry).) " 'The [unanimity] instruction is designed in part 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.' [Citation.]" (Russo, at p. 1132.)
CALCRIM No. 3500 is a standard unanimity instruction. That instruction provides: "The defendant is charged with _____ [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."
2. The trial court's duty to provide a unanimity instruction with respect to a charge of stalking (§ 646.9, subd. (a))
Section 646.9 provides in relevant part:
"(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking."
"(e) For the purposes of this section, 'harasses' means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.
"(f) For the purposes of this section, 'course of conduct' means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose....
(g) For the purposes of this section, 'credible threat' means a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family."
In People v. Zavala (2005) 130 Cal.App.4th 758, 768 (Zavala), the defendant claimed that the trial court erred in failing to provide the jury with an unanimity instruction, sua sponte, with respect to a charge of stalking (§ 646.9, subd. (a)). Specifically, Zavala claimed that the record contained evidence of a series of discrete events, any one of which could have formed the basis for the jury's verdict finding him guilty of following or harassing the victim. (Zavala, at p. 768.) The Zavala court observed that a unanimity instruction is not required when "the defendant is charged with violating a statute by a continuous course of conduct." (Ibid.) In such a case, "there is no need for a unanimity instruction as to individual acts within the course of conduct, because the jury need only agree on whether the defendant committed acts the net effect of which constitutes the statutory offense." (Id. at p. 769.) The Zavala court concluded that the trial court had not erred in failing to provide the unanimity instruction, reasoning:
"The statutory offense here is self-defined to require a course of conduct. (§ 646.9, subd. (e) [' "harasses" means engages in a knowing and willful course of conduct'].) Because Zavala was charged with a 'course of conduct' offense occurring over a period of time, we conclude that the continuing course of conduct doctrine applies and, therefore, no unanimity instruction was required. [Citation.]" (Ibid.)
In People v. Jantz (2006) 137 Cal.App.4th 1283, 1291-1293, the court applied Zavala in considering a defendant's claim that the trial court had erred in failing to provide a unanimity instruction with respect to the credible threat element of stalking (§ 646.9, subd. (a)). The defendant in Jantz claimed that the trial court erred in failing to provide a unanimity instruction because the record contained evidence that the defendant had made two distinct threats directed at the victim. (Jantz, at p. 1292.) The Jantz court rejected that claim, reasoning in part:
"Moreover, evidence shows that the stalking consisted of one continuous course of conduct and, therefore, constituted a single offense. [Citation.] In fact, stalking requires multiple acts and is 'self-defined to require a course of conduct.' ([Zavala, supra, ] 130 Cal.App.4th 758, 769.) Here, if there were multiple threats, they were similar and relatively contemporaneous in time, and the parties did not make any significant distinction between them. [Citation.]" (Jantz, at p. 1293.)
3. Factual and procedural background
During closing argument, after reviewing all of the evidence pertaining to Quick's commission of counts 2 through 9, the prosecutor stated:
"Count 1, which is the last count that I'm going to be talking about, is the stalking count. This is the count ─ the reason why I saved this one for last is because it encompasses really everything we've talked about."
The prosecutor stated that Quick's threatening text messages to the victim, Quick's acts of vandalism against the victim, Quick's commission of arson on the victim's house, Quick's peeping through the victim's window, and Quick's firing a gun into her residence all proved the credible threat element of the stalking count. The prosecutor also argued that the jury should find the firearm enhancements on the stalking charge to be true because Quick "used the gun on one of the incidents." The prosecutor explained, "[T]he fact that he uses it on one occasion puts him on the hook for using a firearm... on that charge."
The jury found Quick guilty as charged on all counts, and found all of the enhancements to be true, including the firearm enhancements on the stalking charge.
4. Any error in failing to provide a unanimity instruction on Count 1 was harmless beyond a reasonable doubt
Quick contends that stalking is not a statutorily defined course of conduct offense with respect to the credible threat element of the offense. We agree that the credible threat element of stalking may be proven by evidence of a discrete statement, by evidence of a course of conduct, or by a combination of discrete statements and a course of conduct. (§ 646.9, subd. (g) [" 'credible threat' means a verbal or written threat... or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct"].) We further assume for purposes of this decision that the trial court erred in failing to provide a unanimity instruction with respect to the credible threat element of the stalking charge in count 1 (§ 646.9, subd. (a)), and conclude that any error in failing to provide such an instruction was clearly harmless under the circumstances of this case.
a. The standard of prejudice
There is a split of authority as to whether a trial court's error in failing to give a unanimity instruction should be reviewed under the standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836 — reasonable probability of more favorable outcome, or the more stringent standard — harmless beyond a reasonable doubt, as applied in Chapman v. California (1967) 386 U.S. 18, 26 (Chapman). (See People v. Smith (2005) 132 Cal.App.4th 1537, 1545; People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 [both collecting cases and noting split].) In Wolfe, the court noted that the Chapman standard applies to errors that violate a defendant's federal constitutional rights, and concluded that the failure to provide a unanimity instruction constitutes such a violation. The Wolfe court reasoned, "When the trial court erroneously fails to give a unanimity instruction, it allows a conviction even if all 12 jurors (as required by state law) are not convinced that the defendant is guilty of any one criminal event (as defined by state law). This lowers the prosecution's burden of proof and therefore violates federal constitutional law." (Wolfe, at pp. 187-188; accord Smith, at p. 1545.) For the reasons articulated in Wolfe and Smith, we agree that the Chapman standard of prejudice should apply in determining whether a trial court's failure to provide a unanimity instruction requires reversal of the judgment.
In Curry, the court stated that in applying the Chapman test to a claim of unanimity instruction error, "the question is ' "whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite [elements of the crime] independently of the force of the... misinstruction." ' [Citation.]" (Curry, supra, 158 Cal.App.4th at p. 783.) The Curry court continued, " '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. [Citation.]' [Citation.]" (Ibid.)
b. Application
The People presented evidence that Quick committed a series of acts against T.C. in the approximately two-month period after T.C. ended her romantic relationship with him. During her closing argument, the prosecutor emphasized that the stalking count was based on all of these acts. The jury subsequently unanimously found that Quick had discharged a firearm into T.C.'s residence (count 2), that he had thrown an explosive device through T.C.'s bedroom window (count 5), that he had vandalized T.C.'s car (count 8), and that he had thrown a concrete slab through T.C.'s bedroom window (count 4). Most significantly, in finding the section 12022.5, subdivision (a) firearm enhancement on count 1 (§ 646.9, subd. (a)) to be true, the jury unanimously found that during the commission of the crime of stalking, Quick personally used a firearm. Under these circumstances, the record demonstrates that the " 'jury resolved the basic credibility dispute against the defendant, ' " and that the failure to give the unanimity instruction was therefore harmless beyond a reasonable doubt. (Curry, supra, 158 Cal.App.4th at p. 783.)
B. Sentencing issues
The parties raise several issues pertaining to Quick's sentence. We consider each claim below.
1. Factual and procedural background
The trial court sentenced Quick to an aggregate term of 19 years in prison. The court selected count 1 (stalking) (§ 646.9, subd. (a)) as the principal term, and imposed a term of six years on that count, consisting of the middle term of three years, doubled in light of a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, 668). The court struck the punishment for all of the firearm enhancements (§§ 12022, subd. (a)(1), 12022, subd. (b)(1), 12022.5, subd. (a)) on count 1 pursuant to section 1385. On count 3 (assault with a deadly weapon) (§ 245, subd. (a)(1)), the court imposed a consecutive term of three years four months. The term on count 3 consisted of one-third the middle term of three years, doubled on the underlying offense (§ 245, subd. (a)(1)), and one year four months for the firearm enhancement (§ 12022.5, subd. (a)). On count 5 (possessing or igniting a destructive device) (§ 12303.3), the court imposed a consecutive term of three years four months, consisting of one-third the middle term of five years, doubled. On count 8 (vandalism) (§ 594, subds. (a), (b)(1)), the court imposed a consecutive term of one year four months, consisting of one-third the middle term of two years, doubled. The court imposed a consecutive five-year prior serious felony sentence enhancement (§ 667, subd. (a)(1)), and stayed imposition of a prison prior sentence enhancement (§ 667.5, subd. (b)), based on the same 2003 conviction.
The court imposed concurrent terms, or stayed imposition of sentence, on the remaining counts. On count 2 (shooting at an inhabited dwelling) (§ 246), the court imposed a consecutive middle term of five years, but stayed imposition of sentence upon successful completion of the term imposed on count 3. On count 4 (vandalism) (§ 594, subds. (a), (b)(2)(A)), the court imposed a concurrent term of six months. On count 6 (arson) (§ 451, subd. (d)) and count 7 (vandalism) (§ 594, subds. (a), (b)(2)(A)), the court imposed concurrent middle terms of two years on each count and stayed imposition of sentence pursuant to section 654. On count 9 (hit-and-run driving) (Veh. Code, § 20002, subd. (a)), the court imposed a concurrent term of six months, but stayed imposition of sentence pending successful completion of the term imposed on count 8.
2. The trial court's error in striking punishment for the section 12022.5, subdivision (a)(1) firearm enhancement on count 1 (stalking) (§ 646.9, subd. (a)) requires resentencing
In their respondent's brief, the People claim that the trial court imposed an unauthorized sentence by striking the punishment for the section 12022.5, subdivision (a)(1) firearm enhancement on count 1 (stalking) (§ 646.9, subd. (a)).
We may consider the People's claim that the trial court imposed an unauthorized sentence in striking the punishment for the section 12022.5, subdivision (a)(1) firearm enhancement, notwithstanding the fact that the People did not file a cross-appeal. (See People v. Crooks (1997) 55 Cal.App.4th 797, 810.)
Quick concedes that the trial court imposed an unauthorized sentence by striking the punishment for the firearm enhancement. We accept the concession. (See People v. Herrera (1998) 67 Cal.App.4th 987, 988-989 ["It is well established that a trial court has no discretion under Penal Code section 1385 to strike the punishment for a personal firearm use enhancement."].)
The People request that we remand the matter to the trial court with directions to impose the section 12022.5, subdivision (a)(1) firearm enhancement on count 1 (stalking) (§ 646.9, subd. (a)). Quick contends that the proper remedy is to remand for resentencing. We agree with Quick. (See People v. Rodriguez (2009) 47 Cal.4th 501, 509 ["remand will give the trial court an opportunity to restructure its sentencing choices"]; People v. Navarro (2007) 40 Cal.4th 668, 681 ["a remand for a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances"].)
Accordingly, we conclude that the trial court's error in striking the punishment for the section 12022.5, subdivision (a)(1) firearm enhancement on count 1 (stalking) (§ 646.9, subd. (a)) requires that the matter be remanded for resentencing.
3. The trial court erred in staying, rather than striking, the enhancement on the prison prior ( § 667.5, subd. (b))
Quick claims that the trial court erred in staying, rather than striking, the prison prior sentence enhancement (§ 667.5, subd. (b)). Quick argues that the trial court properly recognized that it could not impose both a one-year prison prior sentence enhancement (§ 667.5, subd. (b)) and a five-year serious felony sentence enhancement (§ 667, subd. (a)(1)) based on the same prior conviction, but that the trial court erred in staying, rather than striking, the prison prior enhancement. The People concede the error. We agree that the trial court was required to strike, rather than stay, the sentence enhancement on the prison prior. (See People v. Jones (1993) 5 Cal.4th 1142, 1153.)
4. The minute order and abstract of judgment must conform to the sentence imposed
Quick contends that the trial court orally imposed a sentence of five years on count 2, two years on count 6, and two years on count 7, but that the minute order from the sentencing hearing and the abstract of judgment both state that the court imposed a sentence of 10 years on count 2, 10 years on count 6, and four years on count 7. Quick contends that the oral pronouncement of sentence controls, and that the minute order and abstract must be corrected. The People concede the error. We agree that the minute order and abstract of judgment must conform to the trial court's oral pronouncement of sentence. (See People v. Wynn (2010) 184 Cal.App.4th 1210, 1221.)
IV.
DISPOSITION
The sentence imposed is vacated and the matter is remanded for resentencing on all counts. The judgment is affirmed in all other respects.
WE CONCUR: McCONNELL, P. J.HUFFMAN, J.