Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05NF4815, Daniel McNerney, Judge.
Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Garrett Beaumont, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Sills, P.J., Rylaarsdam, J., and O’ Leary, J.
Appellant appeals his conviction for attempted murder which was based on the jury’s finding that he shot five times at a Ford Expedition containing a group of “Samoans.”
Appellant makes the following arguments: (1) He challenges the sufficiency of the evidence by contending the prosecution failed to prove his guilt based on its failure to designate and prove which occupant of the Expedition was the intended victim of the attempted murder. (2) He also contends the prosecutor misled the jury during closing argument. He claims the prosecutor improperly advised the jury the prosecution was not required to prove which one of the vehicle’s five occupants appellant intended to kill. (3) Appellant further argues his trial counsel rendered him ineffective assistance because counsel failed to object to that portion of the prosecutor’s closing argument which told the jury he could be convicted of attempted murder solely on the basis he intended to kill another person by firing multiple shots into the vehicle.
Appellant additionally argues that prejudicial, instructional error led to his conviction for attempted murder. He contends that: (4) the misleading effect of the prosecution’s argument, was compounded or enhanced by the failure to instruct the jury with the optional section addressing a “zone of danger” or “kill zone” found in CALCRIM No. 600, the instruction on attempted murder. Lastly, appellant contends that: (5) the trial court committed prejudicial and instructional error when it failed to sua sponte instruct the jury with CALCRIM No. 3500, for the purpose of requiring the jury to unanimously determine which victim, and which act resulted in the determination of his guilt.
As all of appellant’s contentions fail, we affirm the judgment in its entirety.
STATEMENT OF THE CASE
In November 2006, a jury convicted appellant of attempted murder, discharging a firearm at an occupied vehicle, and possessing a firearm as a felon. The jury found it to be true appellant personally used a firearm in the commission of the attempted murder, and also found it to be true that he committed the crimes for the benefit of a criminal street gang. In a bifurcated court proceeding, the court found it to be true that appellant suffered a serious felony prior.
Prior to trial, the court granted the People’s motion to amend the information by deleting the name of the original attempted murder victim “Elemeniko Nau”and inserting the term “human being” instead. Trial counsel offered no objection to the amendment. Prior to the jury’s verdict, the court granted appellant’s motion for acquittal of the premeditation and deliberation allegation which was charged under count 1.
The court declared a mistrial as to count 3 which alleged active street gang membership against appellant and co-defendant Frank Tellez, after the jurors advised they could not reach a verdict on that count. Tellez was acquitted of the remaining charges against him.
In June 2007, the court denied appellant’s motion for a new trial, and sentenced him to a total term of 30 years in state prison, consisting of the low term of five years for the attempted murder, five years for the serious felony prior, and 20 years for the firearm use enhancement. All other counts were imposed concurrently or stayed, and the court struck the gang enhancements for the purpose of sentencing. The court awarded credit for time served of 540 actual days, plus 81 days of conduct credit for a total of 621 days.
STATEMENT OF THE FACTS
Appellant and co-defendant, Frank Tellez, a heroin addict, and former gang member were tried together for the crimes which occurred on December 11, 2005. Tellez testified in his own defense, and he told the jury that appellant was the shooter who fired multiple times at the Ford Expedition. Despite his well demonstrated lack of “solid citizenship” as evidenced through his testimony at trial, the jury found his version of the events to be credible and acquitted him.
The Fight at Club Unique
On December 11, 2005, Tellez arrived at the Club Unique at about 12:00 a.m. with his friend Dennis Navarro, in Navarro’s Chevy Blazer. Tellez who knew appellant briefly, met up with him at the club just before closing time. Appellant let Tellez sit inside of his tan BMW because Tellez had too much too drink, and he was not feeling well. Tellez refused a friend’s offer of a ride home from the club because he thought he could get a ride with appellant. Prior to leaving, appellant and Tellez discussed going back to Santa Ana. When appellant started the car and began to drive away from the club, Tellez drifted off to sleep in the front passenger’s seat.
About the same time that appellant and Tellez left the club, Jason Mohammed, and four of his friends also left the club’s parking lot in a Ford Expedition. Based on their physical appearance, Mohammed and his friends looked as if they could be of Samoan ethnicity.
Sometime during that evening, a group of “Samoans” had surrounded, beaten, and kicked a club patron named David Urias in the parking lot, before some of his friends were able to drag him away, and get him emergency room treatment for the injuries he received. Appellant later told Tellez while they were both in a North Court holding cell together, that he had seen a group of “Samoans” who beat up, or “jacked up” some guy. Appellant told Tellez he had tried to help the guy who was beaten up, and he just couldn’t forget about it, and was unable to let the incident go. Dennis Navarro later told Tellez that he had seen appellant use a gun or a “cannon” to break up the fight at the club.
The Shooting
Tellez was asleep in the front passenger’s seat of appellant’s car when a series of gunshots suddenly woke him up. Tellez saw a bright flash, thick smoke, and then a series of gunshots coming from the driver’s side of the BMW. Tellez saw appellant firing a black revolver out of the window of the BMW while wearing a set of black gloves. Appellant was holding the gun in his lap, with his left hand on the steering wheel.
Appellant sped away from the scene after shooting at the Expedition. A police unit, who had been called out to investigate the beating in the club parking lot, started to chase the BMW, and activated its light and siren. Appellant yelled out “Fuck [!] The cops are behind us [!]” Tellez asked him, “What the fuck did you do?” In response, appellant handed the gun over to Tellez and told him to “toss it.” Tellez refused to take the gun, and told appellant “I’m not involved.” Appellant told Tellez that he did not “have the balls” to get involved, and then told him to “move the fuck out of the way” as he hurled the gun from the passenger window.
Mohammed was the only Expedition passenger who testified at trial. He said he and four others left the club’s parking lot at about 2:00 a.m. He denied that a fight or disturbance had occurred that evening. He recalled that when the Expedition pulled up to an intersection, five gunshots erupted from a tan BMW. Mohammed who was sitting in the back seat behind the driver, ducked down in his seat as soon as he heard the gunshots. His fellow occupants told police officers who responded to the shooting that someone had shot at them. Mohammed described himself as being of Trinidadian and Tobagan ethnicity. His four friends who were with him in the vehicle were of Tobagan ethnicity. Sometimes people confuse them with Samoans.
The shooting left a total of five bullet strikes in the Expedition and shattered the rear passenger window. There were two holes in the windshield, one hole in the rear passenger’s side window, one hole in the right front passenger door level with the door handle, and one hole in the rear passenger door immediately below the window.
After the shooting, appellant and Tellez were stopped by the police at gunpoint and detained. Police found a black revolver on the sidewalk along the route the chase had taken. The revolver had five expended shell casings in its cylinders, with one cylinder empty. Appellant consented to a search of the BMW, and the police found a gun cleaning kit inside of a tool box located behind the driver’s seat.
A gang expert opined that on December 11, 2005, appellant was an active participant in the Santa Nita gang which had over 100 members, and that the shooting in this case was done to benefit and assist the Santa Nita gang. Appellant had been served with five gang notices, and in 2004 he had admitted gang membership in Santa Nita. The expert said that while some of the older gang members are not active members, they are known to be available to assist the gang if needed, i.e., to respond and retaliate to disrespect if needed.
In his defense, appellant offered up evidence that he no longer associated with Santa Nita gang members. Prior to his arrest, appellant was an extremely well-thought of employee, who worked as a meetings facilitator for a large corporation. Appellant’s brother, who was a co-owner of the BMW along with appellant, testified that the gun cleaning kit and tool box found in the BMW belonged to him.
DISCUSSION
(1) There was sufficient evidence to convict appellant of attempted murder.
Appellant’s challenge to the sufficiency of the evidence fails. The evidence introduced at trial was more than enough to convict him of the charge.
In reviewing a challenge of the sufficiency of evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Hayes (1990) (52 Cal.3d 577, 631.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320.)
To prove a charge of attempted murder, the prosecution must establish the specific intent to kill on each count, and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623.) The defendant’s mental state must be examined as to each alleged attempted murder victim. (People v. Smith (2005) 37 Cal.4th 733, 739-740.)
Despite appellant’s claim to the contrary, overwhelming evidence supports the jury’s verdict that appellant harbored the specific intent to kill a human being or anyone that was riding in the Expedition when it was shot up five times. Fortuitous that no one was killed, the evidence established appellant fired five rapid close range shots at the vehicle, ostensibly in retaliation for an earlier fight which had occurred at the Club Unique.
Significantly, there was ample evidence of appellant’s intent to kill. Tellez told the jury appellant later apprised him that a fight had broken out at the Club Unique at some point before they both left, and that he tried to help the person who was “jacked up” by the “Samoans.” The fight had apparently upset appellant to the point where he told Tellez he couldn’t let the incident go, or he could not forget about it. Moreover, because the occupants of the Expedition left the club about the same time as appellant and Tellez, and were often mistaken for Samoans because of their Tobagan heritage, appellant may have believed they were the same “Samoans” who were involved in the parking lot altercation with Urias.
The bottom line here is that appellant’s act in firing a gun towards a group of human beings at close range, and in a manner that could have killed them had the bullet made its target, supports an inference of intent to kill. (People v. Smith, supra, 37 Cal.4th at 739.) Or, as other cases have concluded: ““‘The act of firing toward a victim at a close, but not point blank range, ‘in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . .””” (People v. Campos (2007) 156 Cal.App.4th 1228, 1242.) Appellant’s claim fails.
(2) The prosecutor did not mislead the jury through the use of improper argument.
Prior to trial, the prosecution motioned to amend the information to delete the name of the original attempted murder victim, “Elemeniko Nau,” and to replace his name with the term “human being.” Significantly, counsel offered no objection to the term “human being” being substituted in as the victim. The prosecution’s rather straightforward theory of appellant’s guilt was that appellant intended to kill a “human being” or a person through the act of firing upon the Expedition in close, rapid, and non-interrupted shots.
We are aware of no such requirement that a victim must be identified by his or her name. For example, in People v. Griggs (1989) 216 Cal.App.3d 734, the court denied a motion for judgment on acquittal where the victim of a shooting had not been identified. In Griggs, the defendant shot at a group of people who scattered before the police arrived at the scene. Defendant was charged and convicted of assault with a deadly weapon upon an unnamed victim. The court denied defendant’s due process claim on the basis an identifiable and named victim is not a required element to prove an assault with a deadly weapon. Public policy would be offended by allowing a defendant who fires a gun in the direction of a human being under these circumstances to not be punished. (Id. at p. 743.) Griggs is applicable to the instant case even though it involves an attempted murder rather than an assault with a deadly weapon, based on the same reasoning. An act of shooting should not go unpunished, and the omission of the victim’s name here did not lower the prosecution’s burden to prove defendant’s guilt to less than proof beyond a reasonable doubt. The failure to identify each of the victim’s did not deprive defendant of his ability to defend himself. Moreover, defendant clearly had notice of the prosecution’s amendment.
Moreover, the prosecution further advanced as part of its theory, that appellant had the specific intent to kill any one of the five occupants that were in the Ford Expedition. In accordance with this theory, the prosecutor in his closing argument told the jury: “To prove up an attempted murder, I need to establish that the defendant took at least one direct but ineffective step towards killing another person, and in fact, the defendant intended to kill that person. It’s a specific intent crime. It requires to us go [sic]inside the head of the defendant to determine what was he thinking at the time that he took this direct but ineffective step toward killing a human being. ¶ . . . ¶ He had that mental state. He was trying to kill those people for whatever reason. Maybe he didn’t like the fight, what he observed over at the nightclub; maybe he didn’t like the way they looked at him; maybe there was some mad-dogging. It doesn’t matter. It’s not my burden of proof why he did it. I don’t have to . . . prove motive. It requires me to prove the elements of the crime. It may explain why he did it, but it’s not my burden of proof to you folks why he did it. I don’t have to prove which one of five people he tried to kill. The law requires me to prove that he intended to kill a human being, plain and simple. Ernesto Rodriguez is guilty of attempt murder as an actual shooter.”
It is for the reasons set forth above that we conclude the prosecutor in closing argument did not mislead the jury. He correctly argued to the jury based on the prosecution’s theory of the case, and his arguments were in conformance with the instruction given to the jury on attempted murder. He told the jury he had to prove appellant intended to kill a “human being” or any one of the five persons inside of the vehicle. The jury did not require more words than these.
(3) Trial counsel did not render appellant ineffective assistance.
Appellant contends counsel rendered him ineffective assistance at trial because counsel failed to object to that portion of the prosecutor’s closing argument which told the jury appellant could be convicted of attempted murder solely by filing several shots into the vehicle. As discussed above, the prosecutor’s statement to the jury was a correct statement of law based on the prosecution’s theory of guilt advanced at trial. Thus, counsel’s failure to so object was not error. Trial counsel is not required to make a futile objection. (People v. Prieto (2003) 30 Cal.4th 226, 261.)
To prevail on a claim he was denied effective assistance at trial, appellant has the burden of proof of establishing two things. First, he must show counsel’s performance was deficient when assessed against an objective standard of reasonableness under prevailing professional norms. (People v. Lewis (1990) 50 Cal.3d 262, 288; People v. Ledesma (1987) 43 Cal.3d 171, 216.) Second, he must show prejudice, i.e., that it is reasonably probable, but for counsel’s failings, the result would have been more favorable to him. (Strickland v. Washington (1984) 466 U.S. 668, 691-692; People v. Jackson (1996) 13 Cal.4th 1164, 1217.) “It is not sufficient to allege merely that the attorney’s tactics were poor, or that the case might have been handled more effectively. [¶] Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.” (People v. Floyd (1970) 1 Cal.3d 694, 709.)
Appellant’s claim fails. He has not met his burden of showing counsel failed to act in a reasonably professional manner, and he cannot show a different result would have been more favorable to him had counsel so objected.
(4) The jury was not required to be instructed on a “kill zone.”
Consistent with the advancement of the prosecution’s theory of guilt, the trial court instructed the jury on the elements of attempted murder pursuant to CALCRIM 600. The court did not instruct, nor did any counsel request that the jury be so instructed with the optional section contained within CALCRIM 600 that further defines a zone of harm, or what is euphemistically referred to as a “kill zone.”
The jury was instructed with a modified version of CALCRIM 600 as follows: “The defendants are charged in Count 1 with murder. To prove the defendants guilty of attempt murder, the People must prove that: One, the defendant took at least one direct but ineffective step towards killing another person; That Two, the defendant intended to kill that person. [¶] Direct steps require more than merely planning or preparing to commit murder or obtaining or arranging for someone or for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement towards the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside - -circumstances outside the plan had not interrupted the attempt. [¶] A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step towards killing, he or she abandons further efforts to complete the crime, or his or her attempt fails or is interrupted by someone else or something beyond his or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing the murder, then that person is not guilty of attempted murder.”
This section so provides: “[A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or “kill zone.” In order to convict the defendant of the attempted murder of [insert name of victim charged in attempted murder counts[s] on concurrent-intent theory, the People must prove that the defendant not only intended to kill [insert name of primary target alleged] but also either intended to kill [insert name of victim charged in attempted murder count[s] on concurrent-intent theory, or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill [insert name of victim charged in attempted murder count[s] on concurrent-intent theory or intended to kill [insert name of primary target alleged] by harming everyone in the kill zone, than you must find the defendant not guilty of the attempted murder of [insert name of victim charged in attempted murder count[s] on concurrent-intent theory.]”
The “zone of harm” is an optional or discretionary section of the CALCRIM No. 600 instruction on attempted murder. It is provided for specifically in those cases where the prosecution relies on the theory that the defendant has created a “kill zone” or harbored a “specific and concurrent” intent to kill anyone in that zone. The instruction is derived from People v. Bland (2002) 28 Cal.4th 313, 331) which provides that while the theory of transferred intent is inapplicable in a case of attempted murder, a defendant may be convicted of the attempted murders of anyone within this “kill” zone on a theory of concurrent, but not transferred intent.
We note that the instruction leaves room for modification. However, it is clear that there must be a primary or designated victim, and then a secondary victim. We believe this is reflected by the number of times (six) that the blank spaces refer to the primary victim to be killed, and then directs the insertion of the name of the secondary victim. As drafted, this portion of the instruction is inapplicable on its face if the prosecution proceeds on a theory where merely one victim is involved.
Appellant misapplies the doctrine of concurrent intent.
Bland addressed the inapplicability of the doctrine of transferred intent to the crime of attempted murder, but concluded that there could still be a concurrent intent such that “a person who shoots at a group of people [may still] be punished for the actions towards everyone in the group even if that person primarily targeted only one of them.” (Id. at p. 329.) Bland resolved that a concurrent intent can be found when there is a “kill zone” created, that is, “‘when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity.’” (Ibid.) This doctrine becomes particularly applicable when there are a lesser number of shots fired at a greater number of victims. For example in People v. Anzalone (2006) 141 Cal.App.4th 380, 383-384, 391, [which despite appellant’s claim is factually distinguishable from this case], the defendant fired two shots from one gun in the direction of a victim standing alone, and then fired another shot in the direction of three separate victims who were standing together. The defendant was convicted of four separate counts of attempted murder.
In reversing three of the counts related to the separate group of three victims, the court concluded the prosecutor’s argument to the jury was erroneous and prejudicial based on the prosecution’s faulty explanation of the “zone of danger” which was explained as “anytime persons are within this zone, the indiscriminate firing of a shot at those persons amounts to an attempted murder of everyone in the group.” (People v. Anzalone, supra, 141 Cal.App.4th at p. 392.) While the prosecution went on to tell the jury how they could convict the appellant of three counts of attempted murder based on one gun shot, or how they could find appellant guilty of four counts of attempted murder when only two shots were fired, the prosecution failed to explain what constituted a “zone of danger” or how the “zone” related to the issue of intent. (Id. at pp. 391-392)
The distinction is thus that in Anzalone, the court concluded based on the prosecutor’s remarks, that “the jury would have reasonably understood that to find attempted murder it was required to find appellant intended to kill at least one of the men standing by the car; but once it did so, it could find appellant guilty of three additional counts of attempted murder simply because the other victims were in the ‘zone of danger.’” (People v. Anzalone, supra, 141 Cal.App.4th at p. 396.)
Here, the prosecutor made no such argument. He told the jury appellant had the specific intent to kill anyone, or any “human being” who was inside the Expedition. The prosecution did not proceed under a theory of concurrent intent, and for that reason, no “kill zone” was mentioned.
Thus, because this case did not involve multiple victims and multiple claims of attempted murder, the prosecution had no need to proceed under a theory of concurrent intent. For the reasons discussed above, the concept of a “kill zone” should not have been addressed as part of the court’s instruction to the jury on attempted murder.
We further note, that the concept of a “kill zone” is “not a legal doctrine regarding special jury instructions, as is the doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others.” (Bland, supra, (28 Cal.4th at p. 331, fn. 6; People v. Smith, supra, 37 Cal.4th at p. 746.) Moreover, this particular section of CALCRIM No. 600 has been held to be “superfluous.” (People v. Campos, supra, 156 Cal.App.4th at p.1243.)
Although not addressed, we note in passing, that instructing the jury on a “kill zone,” might have presented even greater problems. Had the jury been so instructed with this inference, this court might now be addressing an argument based on instructional error, rather than an argument which merely bootstraps an insufficiency of the evidence argument.
For example, in People v. Stone (2008) 160 Cal.App.4th 937, 945-950, the defendant was charged with one count of attempted murder of one victim, but he was not charged with attempting to murder the other persons in the group on which he fired his gun. In that case, the jury was instructed on a “kill zone.” The court held where only one shot is fired into a crowd, and only one attempted murder is charged, the “kill zone” theory is not applicable, and thus, it was error to instruct with the special section of CALCRIM No. 600.
Thus, appellant’s reliance upon those cases utilizing a theory of concurrent intent to kill more than one person in a fired-upon group is misplaced. There was no need for the jury here to be burdened with the concept of a “kill zone.”
(5) The court had no sua sponte duty to instruct on unanimity.
Appellant lastly contends the court committed reversible, prejudicial instructional error by failing to sua sponte instruct the jury on unanimity pursuant to CALCRIM No. 3500. Appellant contends that because the prosecutor argued to the jury in his closing argument that there were “five shots and five occupants of the SUV and one crime of attempted murder” the jury was required to agree upon which victim and act resulted in his conviction for attempted murder. No unanimity instruction was required. Because the acts resulting in his conviction for attempted murder were so closely connected in time as to form one transaction, appellant’s claim fails.
CALCRIM No. 3500 Unanimity provides “The defendant is charged with [insert] description of alleged offenses [in Count] sometime during the period of to ].
The prosecutor argued at trial “And ladies and gentlemen, what I would submit to you, quite simply, is that when you take a 38 caliber gun and you’re driving essentially adjacent to another vehicle and you pull the trigger once, twice, three times, four times, five times and you hit that other vehicle in the windshield twice and three more times in the passenger compartment of the car, you’re not trying to scare anybody. When you’re taking a gun you’re shooting at somebody right next to you, you’re not trying to scare anybody. There is no other reasonable interpretation to attach to that piece of evidence other than at the time that Ernesto Rodriguez pulled the trigger five times he was trying to kill the occupants of that car.
The California Constitution protects the right of every criminal defendant to a unanimous jury verdict. (Cal.Const., art. I, § 16; People v. Jones (1990) 51 Cal.3d 294, 321.) A defendant’s constitutional right to a unanimous jury verdict requires that when the evidence shows more than one unlawful act that could support a single charged offense, the prosecution must either elect which act to rely upon, or the court must sua sponte give a unanimity instruction telling the jury they must unanimously agree which act constituted the crime. (People v. Melhado (1998) 60 Cal.App.4th. 1529, 1534, 1539; People v. Russo (2001) 25 Cal.4th 1124, 1132.)
The instruction is designed to eliminate the possibility that a defendant will be convicted when there is no single offense that all the jurors agree the defendant committed. However, if the record establishes that the prosecution clearly communicated an election to the jury so as to inform them they must unanimously agree on a particular act, than no unanimity instruction is required. People v. Diaz (1987) 195 Cal.App.3d 1375, 1383.)
Moreover, a unanimity instruction is not required in all cases even where the evidence establishes that more than one act could suffice for a conviction of a particular offense. “‘“A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.”[Citations.] “[W]here the acts were substantially identical in nature so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury’s understanding of the case.”’” (People v. Champion (1995) 9 Cal.4th 879, 932, disapproved on another ground in People v. Ray (1996) 13 Cal.4th 313, 363, 369, fn. 2.)
A unanimity instruction is further not required when the acts are so closely connected in time as to form a part of one transaction. The “continuous conduct exception” applies if the defendant tenders the same defense or defenses to each act, and if there is no reasonable basis for the jury to distinguish between them. (People v. Crandell (1988) 46 Cal.3d 833, 875 overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Maury (2003) 30 Cal.4th 342, 423 [acts are so closely connected they form part of one and the same transaction]; People v. Napoles (2002) 104 Cal.App.4th 108, 115-116 [a statute contemplates continuous course of conduct of a series of acts over a period of time].)
Here the court had no sua sponte duty to instruct the jury on unanimity. The evidence at trial clearly established appellant fired a series of five rapid gunshots into the Expedition without interruption. The victim or “human being” was any one of those five present in the Expedition, and the act in firing the shots were so close together or connected in time that they formed a single transaction. (People v. Diedrich (1982) (31 Cal.3d 263, 282.)
Moreover, the instruction was not necessary on the basis that since the evidence clearly established appellant was the shooter, the jurors must have believed if appellant fired one of the shots, he fired all of the shots. (People v. Curry (2007) (158 Cal.App.4th 766, 783.)
Appellant’s claim again fails.
DISPOSITION
The judgment is affirmed.
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.”