Opinion
C084817
08-28-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEON SHARP, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE020965)
Following a jury trial, defendant Richard Leon Sharp was convicted of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count two (a knife); count three (a BB gun)) and one count of taking or driving a vehicle (Veh. Code, § 10851, subd. (a); count five (a trailer)), with a great bodily injury enhancement (§ 12022.7, subd. (a)) on count two. The trial court sustained two strike allegations (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)) and sentenced defendant to 25 years to life plus nine years.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses. --------
On appeal, defendant contends: (1) the failure to give a unanimity instruction on one of the assault counts was prejudicial error and (2) he is entitled to an extra day of presentence conduct credit. We conclude that the continuous course of conduct exception applies and thus no unanimity instruction was needed. However, we modify the award of conduct credits to add an extra day and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution Case
Taking or Driving a Vehicle (Trailer)—Count Five
D.M. had a trailer he used for work that he kept parked across the street from his home. His former work logo was still visible on the trailer. On October 4, 2016, D.M. noticed the trailer was missing. Video surveillance footage showed a green Toyota 4Runner pull up and take the trailer.
On October 12, 2016, D.M. was walking his dogs when he saw his trailer hooked up to the same Toyota 4Runner that he had seen on the surveillance footage. The trailer was painted camouflage colors, but the lettering of his former work logo was still visible. Defendant was standing near the trailer. D.M. took photos of the trailer with his phone, walked up to defendant, and asked whose truck that was. Defendant did not answer. Instead, defendant walked by D.M., pulled up his shirt, pointed to a gun in his waistband, got into the Toyota, and left.
Assault with a Knife and BB Gun—Counts Two and Three
In October 2016, K.D. was living with friends or staying in his pickup truck. K.D. is an amputee and has a prosthetic leg.
K.D. was visiting a friend at the friend's apartment complex later that month when the apartment manager approached K.D. and asked whether he owned a trailer parked at the complex. After K.D. said he did not, the manager replied she would have the trailer towed. K.D.'s friend told K.D. that he knew the person who had left it there and that he had abandoned it. The friend suggested that K.D. should take the trailer and "put a lien process on it." (Italics omitted.) K.D. asked the manager if she had any objection to him taking the trailer and she said that would be fine, she just wanted the trailer off the property. K.D. took the trailer and left his cell phone number with the manager. While there was a lot of property inside the trailer, K.D. did not know it was stolen.
In the late afternoon of October 30, 2016, K.D. took the truck and trailer to the Pick-n-Pull to get a taillight part. He put his laptop in the trailer while he was there. As K.D. stood by his truck, defendant approached. Defendant was very angry, accused K.D. of stealing the trailer, and demanded it back. K.D. explained he took the trailer because it was going to be sold, and told defendant he could have it back.
Defendant became very aggressive and violent. When K.D. told defendant he could have the key to the new lock on the trailer, defendant instructed him to open the trailer. After K.D. complied, defendant told K.D. to hook the trailer up to defendant's truck.
K.D. took his laptop computer from a bag he removed from the trailer. Defendant said the bag was not K.D.'s. He pulled out a gun and told K.D., "[Y]ou better give me back all of my shit" (italics omitted), so K.D. gave him the bag. Defendant also said K.D. was lucky there were people around or he would "smoke [K.D.'s] ass right there."
Defendant poked K.D. twice in the forehead with the gun. He told K.D. that he had plans to put K.D. in the trailer and take him somewhere. Defendant called a friend and said, "[Y]ou need to get over her[e], this mother fucker thinks he's gonna just walk away from this and . . . nothing is gonna happen." (Italics omitted.) At one point, K.D. went to put his laptop in his truck. Defendant walked up behind him and said, "I told you to stay out of the truck" (italics omitted), and struck K.D. with the gun fairly hard on the side of his head, dazing him.
Defendant next jerked K.D. around, which led K.D. to put up his hands to push defendant away. In response, defendant "gutted" K.D. with a knife by slashing him quickly across the bottom ribs, into the muscular walls of his stomach and abdomen, and down to the lower side of his opposing hip. K.D. looked at the wound and saw intestines, muscle tissue, and a lot of blood. He walked away from defendant while holding his stomach. Defendant's friend drove up just before the stabbing, but got back into the car and drove off when defendant stabbed K.D.
As defendant got into his 4Runner, Sacramento County Sheriff's Deputy Rachel Fitch arrived at the scene. Defendant complied with her directive to exit the vehicle and get on his knees with his hands above his head. When Deputy Fitch ordered defendant to get on his stomach, defendant refused and then refused a second order to do the same. He then got up, entered his 4Runner, and drove to his cousin's house, who lived approximately a mile away, with multiple sheriff's vehicles responding. Defendant stayed in his vehicle, ignoring the sheriff's commands, and made multiple calls including one call to 911. Approximately an hour to an hour and a half later, defendant started his vehicle and left this location, but slowed after he ran over a spike strip deployed by California Highway Patrol officers. Defendant ended the pursuit in front of his grandfather's old home, where a two and one-half hour standoff with the patrol officers started. Sacramento Police Department's SWAT team arrived and took over control of the scene and the standoff ended when SWAT deployed a second round of a pepper ball and another chemical agent to flush defendant out of his vehicle.
Defendant was uninjured. A pocket knife, with an eight-inch overall length that defendant threw from his 4Runner, was found by law enforcement. A BB gun was found inside defendant's vehicle.
K.D. was taken to the hospital, where he spent about three days following surgery. Interviewed at the hospital, he told a detective that he started to fight with defendant after defendant hit him in the head five or six times with the handgun. K.D. also said he was stronger than defendant, which made defendant angry.
The Defense Case
An assistant apartment manager testified that upon seeing an improperly parked or unauthorized vehicle in the complex's parking lot, she would place a tag on the vehicle to notify the owner it would be towed. On October 28, 2016, a man with a prosthetic leg named K., claimed a trailer that was to be towed. The man said he owned the trailer. No one told the man the trailer had been abandoned, and the man did not provide contact information. She did not "release" the trailer to the man, and did not see him take it.
Testifying on his own behalf, defendant admitted originally taking the trailer because he did not have a place for his belongings. He initially moved the trailer around, parking it on the street where he was sleeping in his vehicle. Defendant eventually moved the trailer to the apartment complex at the suggestion of his friend Dean, who said defendant could park the trailer in his sister's spot. When defendant returned to the apartments on October 28, the trailer was not there. He could not notify the police because the trailer was stolen. The trailer was filled with defendant's belongings, including his identification and his mother's urn.
Defendant next saw the trailer at the Pick-n-Pull on October 30. He recognized K.D. from the note defendant got from the apartment complex describing the man who took the trailer. He accused K.D. of stealing the trailer, which held all of his belongings, but K.D. did not respond. Defendant showed the note to K.D., who first responded in a strange language and, when asked what he said, told defendant he was going to kill him. K.D. reached inside the vehicle; defendant tried to pull him away to keep K.D. from reaching in. K.D. pushed defendant away and started to approach him, so defendant took out his BB gun, cocked it, and told K.D. he would shoot K.D. if he came any closer.
After K.D. stopped, defendant told K.D. to unhook the trailer from his truck, which K.D. did. Defendant told K.D. to unlock the truck, and he complied again. Defendant claimed that K.D. eventually grabbed defendant's laptop computer bag and backpack and placed them on the ground. Defendant tried to snatch them, but K.D. pushed him away. Defendant caught his balance and lunged at K.D., but did not connect. K.D. then grabbed defendant's wrist that held the BB gun and also grabbed defendant by the throat.
Defendant testified that he tried to get K.D.'s hand off his throat, but K.D.'s grip grew tighter. K.D. maintained the grip after defendant punched him on the right side of the face. Finally, K.D. let go when defendant got his knife from his pocket, opened it, and slashed K.D. across the stomach.
Defendant testified that he had the knife and BB gun for protection when he approached K.D., but neither weapon was visible as defendant approached. He never struck K.D. with the gun, nor did he ever poke K.D. with it.
The Prosecution's Rebuttal Case
Defendant was interviewed by a detective after he was arrested. Defendant did not tell the detective that he had a BB gun when he encountered K.D. Nor did defendant say anything to the detective about K.D. grabbing his wrist of the hand that held the BB gun. Defendant also never mentioned being grabbed by the throat. And defendant never told the detective that K.D. threatened to kill him. Defendant never claimed he defended himself or that he had been in fear.
DISCUSSION
I. Unanimity Instruction—Count Three
Neither party requested a unanimity instruction as to count three, assault with a deadly weapon, the BB gun. Defendant contends the trial court erred in failing to give a unanimity instruction (CALCRIM No. 3500) regarding count three, the charge of assault with a deadly weapon involving defendant hitting K.D. with a BB gun.
"[T]he 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." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Where the evidence justifies an unanimity instruction, the trial court must give it even without a request. (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
"There are, however, several exceptions to this rule. For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' [citation], or 'when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time' [citation]. There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).)
The prosecution argued in closing that there were two acts when defendant could have assaulted K.D. with the BB gun: (1) when he initially poked K.D. in the head with the BB gun and (2) when defendant hit K.D. on the head with the BB gun. Also, in arguing the BB gun was a deadly weapon, the prosecutor stated: "If you're poking it at somebody's forehead and it discharges, whether it be intentionally or even accidentally, that can cause great bodily injury. . . . [¶] But you also have the situation where [K.D.] told us that he was hit in the head with the gun, and he was hit hard enough that he believed it was a real gun. So if you hit somebody in the head, obviously the head -- the head is an area of the body that is susceptible to being injured pretty severely, and if you're hitting somebody in the head with an object, the side of the head, that's a situation where that object can cause great bodily injury."
Defendant admits the two acts "were arguably closely connected in time so they could be considered to be 'part of one transaction.' " He additionally admits his defense to both acts was the same. Nonetheless, defendant argues a unanimity instruction was required because "there was a reasonable basis for the jury to distinguish between the two acts because here the prosecutor urged the jury to focus on two distinct acts to find [defendant] guilty on one count."
Defendant's argument on appeal relies primarily on this court's decision in People v. Norman (2007) 157 Cal.App.4th 460 (Norman). A panel of this court held in Norman that a unanimity instruction was required in a prosecution for theft and receiving stolen property after determining there were multiple discrete acts, any of which could have constituted the charged offense. (Id. at pp. 464-465.) There, the defendant and an accomplice were caught breaking into "cluster" mailboxes at an apartment complex and stealing credit cards and ATM cards from those mailboxes. (Id. at pp. 463-464.) When authorities searched the vehicle the men were using, they discovered additional pieces of mail that had been stolen from various locations. (Id. at p. 463.)
During closing arguments, the prosecutor in Norman "did not make an election as to which acts were to constitute the theft and, during closing argument to the jury, specifically argued both the theft of the mail in the car and the theft of the mail from the apartment complex." (Norman, supra, 157 Cal.App.4th at p. 465.) The prosecutor in Norman began closing argument by talking about possession of the stolen mail outside of the apartment complex; he then stated: " 'But also there is more mail here, the one—the mail that was found actually in the car.' " (Id. at p. 466.) Under these circumstances, this court held that "the evidence supported more than one discrete crime of theft and the prosecution not only failed to elect among the crimes, but actually argued both to the jury. Accordingly, the trial court was required to instruct the jury sua sponte that it must unanimously agree on the criminal conduct supporting the conviction." (Ibid.)
Defendant asserts that Norman governs here because the prosecutor, as in Norman, relied on either of both acts when arguing for a conviction on the assault count involving the BB gun. We disagree because the court in Norman did not, and did not need to, address exceptions to the unanimity instruction. Unlike Norman, which involved discrete acts separated by time and location, the two acts here were, as defendant admits, part of a continuous course of conduct. They were " 'so closely connected in time as to form part of one transaction.' " (Jennings, supra, 50 Cal.4th at p. 679.) Also, the Norman court did not address whether there was a common defense to the two acts. Again, this contrasts with the situation here, where defendant had the same defense to both acts of assault with the BB gun, i.e. that although he had the gun with him when he confronted K.D., he did not strike him with it. Accordingly, no unanimity instruction was required here. (Jennings, at p. 679.)
II. Presentence Credit
The trial court awarded defendant 239 days of presentence credit, which consisted of 209 actual days and 30 days of conduct credits. Defendant and the Attorney General correctly point out that defendant is due an extra day of conduct credit.
The great bodily injury enhancement elevated the assault with a deadly weapon conviction in count two to a violent felony. (§ 667.5, subd. (c)(8).) Where a person is convicted of a violent felony, section 2933.1 limits conduct credit to no more than 15 percent of the actual period of presentence confinement. (§ 2933.1, subd. (c).) Fifteen percent of 209 days is 31 days, not 30 days as awarded by the trial court. We modify the judgment to include the correct award of credits.
DISPOSITION
The judgment is modified to reflect that defendant is entitled to 31 days of conduct credit pursuant to section 2933.1, and 240 days of total presentence credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modified award of credits and to forward a certified copy to the Department of Corrections and Rehabilitation.
s/ MURRAY, J. We concur: s/BUTZ, Acting P. J. s/DUARTE, J.