Opinion
D072018
12-22-2017
THE PEOPLE, Plaintiff and Respondent, v. SAM SHHADAY, Defendant and Appellant.
Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN349874) APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed as modified and remanded. Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
This case involves neighbors in a retirement community who got into an argument about noise coming from appellant's yard. The argument escalated into appellant and one of the neighbors squirting water on each other with garden hoses. During the process, appellant threw a clay pot at one of the neighbors, hitting him in the arm and head. Appellant was convicted of misdemeanor assault (Pen. Code, § 240) as a lesser included offense of the charge of assault with a deadly weapon. Appellant was granted probation on various terms and conditions.
Appellant appeals contending the trial judge failed, sua sponte, to give an unanimity jury instruction and that one of the probation conditions is unconstitutionally vague. We will find an unanimity instruction was not required on the facts of the case. The People have conceded the probation condition is vague and urge us to rewrite it. We will remand the case to the trial court with directions to either modify the condition or strike it. Accordingly, we will affirm the judgment as modified.
STATEMENT OF FACTS
The facts surrounding the offense are not in dispute and the issues on appeal do not require reliance on the facts of the offense. Thus, we will include the summary of facts from the respondent's brief with the last names of the witnesses redacted.
Appellant, Eli W., and Scott M. are neighbors in a retirement community in Oceanside. On the morning of September 3, 2015, Eli W. heard a screeching sound coming from appellant's yard - which adjoins Scott M.'s yard - and went to Scott M.'s yard to investigate. When Eli W. asked appellant why he was constantly running the machine that was causing the screeching noise, appellant told him it was none of his business. Appellant then sprayed Eli W. in the face with a hose. Eli W. retreated into a corner of Scott M.'s yard. Scott M., who was also standing in the yard, became angry when he saw appellant squirting Eli W., and picked up his own hose and began to squirt appellant. The two squirted each other for about 15 seconds. Appellant then picked up a heavy clay pot, heaved it at Scott M., and struck him in the arm and head. When an Oceanside police officer later interviewed appellant, appellant said he believed Scott M. and Eli W. tried to attack him. However, appellant denied throwing the flower pot at Scott M.
DISCUSSION
I
CLAIMED INSTRUCTIONAL ERROR
Appellant claims for the first time on appeal that the court should have given an unanimity instruction to the jury. There is no basis in this record for such instruction. The argument appellant presents is based on the following reasoning. First, appellant was charged with one count of assault (with a deadly weapon). There were, however three "possible assaults" under the facts, i.e., two hose squirtings by appellant and one act of throwing a clay pot. Appellant reasons from those premises that each touching was an assault, thus the jury should have been instructed to unanimously agree on the particular criminal act. Of course, squirting the neighbor with a garden hose could not rise to assault with a deadly weapon, the charged offense on the facts of this case. Further, the prosecutor focused only on the act of throwing the clay pot, thereby electing only one act to support the charge. Neither the prosecutor, defense counsel or the court ever contended that squirting water on the neighbor was the criminal act in this case. In short appellant's argument in support of the claimed need for a unanimity instruction is not anchored in the reality of this case.
A. Legal Principles
In People v. Russo (2001) 25 Cal.4th 1124, 1132, the court observed that the jury in a criminal case must be unanimous in deciding what specific crime was committed by the defendant. "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." (Ibid.)
Where there is more than one discrete act which could constitute the charged crime, the trial court has a sua sponte duty to instruct on unanimity when there has been no election of discrete acts by the prosecution. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) A prosecutor may make an election during his or her closing arguments. (Id. at p. 1539.)
Analysis
Although there were three possible acts of "touching" in this case, (i.e., squirting water twice and throwing a pot) only one act was charged as the basis of assault with a deadly weapon and that was the throwing of the clay pot. That was the only act discussed by the prosecutor or the defense with regard to the charged crime. Appellant contends the prosecutor mentioned use of the water hose in final argument. While there was such a reference, it was in the context of appellant's claim of self-defense. There the prosecutor made reference to the water hose to show that appellant was the aggressor in the affray, not that such act constituted an assault.
The prosecutor made it very clear to the jury that the act which appellant committed that made him liable for the charged offense was the throwing of the clay pot. Where the prosecution makes an election of the specific act for the offense, an instruction on unanimity is not required. (People v. Melhado, supra, 60 Cal.App.4th at p. 1539.) In any event, we are satisfied that any possible error regarding failure to instruct on unanimity as to which act supported the conviction, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The defense to the charge, specifically to the act of throwing the pot, was self-defense. Appellant claimed he was afraid of the neighbor who was allegedly trying to get over the fence. Appellant claimed he threw the pot to "protect" himself. Nobody in the presentation of this case even hinted that squirting someone with a garden hose was a criminal act. There is virtually no chance that a juror could have made such assumption on this record.
II
THE CHALLENGED PROBATION CONDITION
One of the conditions of probation imposed by the court requires that appellant have "no negative contact" with his neighbors. Appellant contends the condition is vague and overbroad. The People agree and ask this court to rewrite the condition. We decline to do so. We will, however, remand the case to the trial court for further consideration of the challenged condition.
The condition does not give appellant any guidance as to what might constitute a negative contact. Because there is a lack of guidance of what he is permitted to do and what he may not do in dealing with his neighbors, appellant cannot realistically know what actions are lawful and what are impermissible.
The Supreme Court in In re Sheena K. (2007) 40 Cal.4th 875, 890, held that probation conditions which limit otherwise lawful conduct by a probationer must be limited to the legitimate purposes of probation and must be sufficiently clear that the probationer will know what is permitted and what is not. Here there is no definition of negative contact or the implicit limitations on how appellant may conduct himself regarding his neighbors.
We will remand the case to the trial court to clarify or strike the condition.
DISPOSITION
The judgment of conviction is affirmed and the matter is remanded to the trial court with directions to clarify the meaning and scope of the "no negative contact" probation condition or to strike the condition as the court deems appropriate.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.