Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Super. Ct. No. 29946
Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Susan J. Orton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Appellant Nick Soto was convicted after jury trial of possessing a dirk or dagger (count 1), two counts of attempting by threat or violence to prevent a peace officer from performing his duty (counts 2 & 3), and two counts of misdemeanor resisting arrest (counts 4 & 5). Two prior prison term enhancements were found true. (Pen. Code, §§ 12020, subd. (a); 69; 148; 667.5, subd. (b).) Appellant was sentenced to an aggregate term of six years and four months imprisonment, calculated as the upper term of three years for count 1, two consecutive eight-month terms for counts 2 and 3 and two consecutive one-year terms for the prison priors; two concurrent six-month terms were imposed for counts 4 and 5.
Unless otherwise specified, all statutory references are to the Penal Code.
Appellant argues that the court prejudicially erred by failing to give a unanimity instruction for count 2. Also, he challenges the court’s refusal to apply section 654 to the threat counts and to the resisting arrest counts. Finally, he contends that imposition of the upper term constitutes prejudicial Blakely/Cunningham error. We agree with appellant that the one of the terms imposed for the resisting arrest counts must be stayed; the sentencing court determined that section 654 applied to these counts but failed to order one of the two terms stayed. Appellant’s other arguments are not convincing. We will order the judgment modified and, as modified, affirm.
Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
FACTS
Shortly after midnight on January 14, 2006, police were called to a bar in Los Banos. The bar’s bouncer reported that he pepper sprayed appellant after appellant reached for what the bouncer believed was a weapon. After being sprayed, appellant ran out the back door.
Los Banos Police Officer Jeff Pickett spotted appellant as he ran onto the grounds of a nearby school. After requesting backup, Pickett pursued him by foot.
Los Banos Police Officer Ray Reyna jogged to the fence surrounding the schoolyard. He could hear and see appellant, who was underneath some bushes.
Reyna and Pickett ordered appellant multiple times to show his hands and get out of the bushes. When he did not cooperate, Pickett applied pepper spray.
Appellant moved a bit and lifted his shirt. Reyna saw a knife handle in appellant’s waistband. Reyna warned appellant that if he did not show his hands, Reyna would use the taser. When appellant failed to comply, Reyna discharged the taser. Appellant showed his hands and crawled out of the bushes. A knife that was about six inches long was removed from appellant’s waistband.
While appellant was being searched, he said to Pickett, “You’re scared of me, aren’t you, bitch?” Then he said to Pickett, “Because the next time I see you and I’m not in these handcuffs, I’m going to take your gun and kill you with it.”
Appellant was transported to the hospital for decontamination and probe removal. Reyna accompanied appellant. While they were at the hospital, appellant said to Reyna, “[T]hat we were lucky that he did not take our guns from us and shoot us.” He also said that, “[H]e’s killed several officers in the past using a rifle and we were lucky that he didn’t shoot us as well.” Finally, appellant said to Reyna, “You guys better stop fucking with me or I’m going to blow up your house.”
Appellant was transported to the jail. Reyna accompanied him. During the booking process, appellant began cursing at the police. Appellant asked Reyna when he would be released from jail. Reyna told appellant that he may go to court on Monday. Appellant said to Reyna, “Good, because when I get out, I’m going to shoot your ass.” Appellant also said, “[H]e was going to shoot 40 police officers and take their weapons.”
DISCUSSION
I. Failure to give a unanimity instruction was not prejudicial error.
Appellant was convicted in count 2 of threatening Officer Reyna. Appellant argues that the court had a sua sponte obligation to give a unanimity instruction with respect to count 2 because there were two acts on which the jury could have based its decision. It could have found him guilty based on the threats he made while being treated at the hospital or the threats he made during the booking process at the jail. In appellant’s view, it was impossible to determine which statements the jury relied upon as the basis for the guilty verdict; therefore, the failure of the court to give a unanimity instruction as to count 2 constituted prejudicial error. We resolve this issue adverse to appellant because, even assuming for purposes of this discussion only that a unanimity instruction should have been given sua sponte, the instructional omission is harmless beyond a reasonable doubt.
Failure to give a unanimity instruction is governed by the harmless beyond a reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Thompson (1995) 36 Cal.App.4th 843, 853 (Thompson). Thompson sets forth the applicable legal principle:
“Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. [Citation.] 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.]” (Thompson, supra, 36 Cal.App.4th at p. 853, emphasis added.)
In this case, the evidence is such that there was no basis for the jury to have concluded anything other than that appellant threatened Reyna at the hospital and at the jail. Reyna testified that appellant’s statements at the hospital included the following direct threat, “You guys better stop fucking with me or I’m going to blow up your house.” At the jail, appellant told Reyna that when he is released from custody, “I’m going to shoot your ass.” Reyna’s testimony was undisputed; no defense witnesses or evidence was presented. The prosecutor did not distinguish between the threats at the hospital and the threats at the jail in his closing argument. He treated them as a continuous course of conduct.
Defense counsel did not raise separate defenses to the threats at the hospital and the threat at the jail. During closing argument, defense counsel urged the jury to dismiss all of appellant’s threatening statements as meaningless expressions of anger and frustration arising from his intoxication and pain. Defense counsel argued that none of the threats were made with the intent to deter Reyna or Pickett from performing their duties. This defense theory applied equally to the threatening statements appellant made to Reyna at the hospital and the jail.
In light of Reyna’s undisputed testimony that appellant threatened him at the hospital and the jail and the theory of defense, it is not reasonably possible that the jurors would have disagreed which threat formed the basis for criminal liability. This is a case where the jury’s verdict demonstrates that it did not believe the only defense offered. Therefore, appellant was not prejudiced by the omission of a unanimity instruction.
People v. Melhado (1998) 60 Cal.App.4th 1529, which is relied upon by appellant, is distinguishable. There, the defendant made three distinct threats during the course of a day. On each of these occasions, he went to the victim’s auto repair shop, threatened the owner and then left. Each of these threats could have supported a separate count. The prosecutor elected, outside the jury’s presence, to rely on one of the threats to support the count alleging a violation of section 422. However, the prosecutor referenced all three of the threats during his closing argument. The court refused to give a unanimity instruction and the jury was never informed that the prosecutor had elected to rely on one of the threats. The appellate court determined that the failure to inform the jury that the prosecutor had elected to seek conviction based only on one of the threats or to give a unanimity instruction was prejudicial error. (Id. at pp. 1534-1539.) In contrast here, no such election occurred; the prosecutor treated appellant’s threats at the hospital and at the jail as a continuous course of conduct. Furthermore, defendant’s threats to Reyna occurred during the course of one hour, and not on three separate occasions throughout a day. Finally, the defense theory applied equally to all of appellant’s threatening statements to Reyna. For these reasons, we conclude that Maldonado is inapposite.
II. Section 654 does not apply to counts 2 and 3.
Appellant was convicted in count 2 of threatening Officer Reyna and in count 3 of threatening Officer Pickett. During the sentencing hearing, defense counsel argued that one of the terms imposed for the two threat counts should be stayed pursuant to section 654. The court rejected this argument, concluding that these were separate offenses. It explained: “[T]here were two different locations, two different officers .… And one of them was a threat that next time I’m going to -- when I get out I’m going to shoot you or something to that effect to one officer. And then the threat to the other officer was different time and place those seem to be unrelated.” It imposed two consecutive eight-month terms for counts 2 and 3.
Appellant contends that section 654 bars separate punishment for counts 2 and 3 because he harbored a single intent, “to threaten the police officers who were involved in his arrest,” and the threats “were all part of the same course of conduct.” We are not persuaded.
“The test for determining whether section 654 prohibits multiple punishment has long been established: ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.] … [C]ases have sometimes found separate objectives when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous. In those cases, multiple punishment was permitted. [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952.)
Whether the defendant entertained multiple criminal objectives is a factual question to be decided by the trial court and its determination will be upheld on appeal if there is any substantial evidence to support it. “We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
In this instance there was substantial evidence from which the sentencing court could find that appellant’s conduct in threatening Officer Pickett in the schoolyard was divisible from his conduct in threatening Officer Reyna at the hospital and jail. The offenses took place in different locations and involved different victims. The threats of violence differed as well. Appellant threatened to take Pickett’s gun and kill her with it. He threatened to blow up Reyna’s house, in addition to shooting Reyna. He also told Reyna that he was going to shoot 40 police officers and take their weapons. Finally, the threats occurred at different phases in the criminal proceedings. He threatened Pickett during the arrest process. He threatened Reyna while he was being treated at the hospital and during the booking process. It reasonably can be concluded from the entirety of the evidence that the two offenses were divisible and that appellant possessed separate but consecutive objectives. Accordingly, we will uphold the sentencing court’s determination that section 654 does not preclude imposition of separate punishment for counts 2 and 3.
III. Section 654 applies to counts 4 and 5.
Appellant was convicted in count 4 of resisting Officer Reyna and in count 5 of resisting Officer Pickett. The court sentenced appellant on these counts, as follows:
“The Court finds that the misdemeanors would run concurrent. Counts 4 and 5 are really -- they’re subject to 654. They’re the same orders by different officers, Reyna and Pickett, ‘show your hands and come out of the bushes.’ They were the same commands so I’m going to impose six months under four and five which would run concurrent.” (Emphasis added.)
The abstract of judgment provides, “count 4 and count 5 are misdemeanors, 6 months ordered for each, to run concurrent to the felony counts.”
Appellant contends that section 654 requires one of the two terms imposed for counts 4 and 5 to be stayed. We agree. The sentencing court determined that section 654 applied to these two counts. This was a reasonable determination that is supported by the evidence. Appellant was lying in some bushes when Officers Reyna and Pickett commanded him to show his hands. He did not comply. Only after being maced and tasered did he crawl out of the bushes and submit to their authority. Counts 4 and 5 occurred during the same event. Appellant committed these offenses in furtherance of the same intent and objective -- avoiding arrest. Thus, the trial court correctly found section 654 applied.
The sentencing court erred by failing to stay one of the concurrent terms. “[T]he court cannot order a sentence to run concurrently and invoke Penal Code section 654 at the same time. When, as here, that section applies, the appropriate action is to impose a term for the subject offense and order it stayed.” (People v. Brenn (2007) 152 Cal.App.4th 166, 181.)
This defect can be corrected on appeal and does not require remand for resentencing. (See, e.g., People v. Brenn, supra, 152 Cal.App.4th at p. 181.) The proper remedy is to modify the judgment to stay the term imposed for one of the two affected counts. (Ibid.)
IV. Imposition of the upper term was not prejudicial Blakely/Crawford error.
A. Facts
The jury found true two section 667.5 prior prison term enhancement allegations resulting from felony convictions that appellant suffered in 1993 and 1999.
The probation report sets forth appellant’s lengthy criminal history. Appellant is 37 years old. His criminal record spans 20 years. It began in 1987, when he was adjudicated a ward for driving while unlicensed. He suffered another juvenile adjudication in 1988; he violated his probation later that year. Appellant suffered his first adult conviction in 1990 for disturbing the peace. He was convicted of additional misdemeanor offenses in 1991 and 1992. He suffered a felony conviction for possessing a controlled substance in 1993 and served a prison term for this offense. He suffered additional misdemeanor convictions in 1993, 1994 and 1997. In 1999 he served another prison term after being convicted of felony battery on a peace officer with injury and resisting an executive officer. He violated his parole six times from 2002 to 2005. He suffered additional misdemeanor convictions in 2002 and 2005.
There is a de minimus error in the probation report. It states that appellant’s conviction for transporting a controlled substance occurred on January 19, 1994. In actuality, this conviction occurred on July 22, 1993.
After argument, the court imposed the aggravated term for count 1. In setting forth its reasons for this decision, the court largely focused on appellant’s recidivism. The court explained that appellant’s “prior convictions are numerous and seem to be of increasing seriousness although even if not of increasing seriousness of equal seriousness as there seems to be a pattern here in dealing with law enforcement or his reaction to law enforcement.” The court pointed out that appellant continued to commit crimes during probationary periods and that he has numerous parole violations. The court also stated that appellant had “engaged in violent conduct and is a danger to society.” The court did not find any mitigating factors.
B. Appellant’s jury trial right was not prejudicially infringed.
Relying on Blakely, supra, 542 U.S. 296 and Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], appellant argues that the court prejudicially infringed his federal constitutional jury trial right at sentencing. We disagree.
In Cunningham, the United States Supreme Court invalidated the portion of California’s Determinate Sentencing Law that permits a judge to impose an upper term sentence based on aggravating sentencing factors, other than a prior conviction, that are not determined by a jury. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 860, 863-864, 868].) Cunningham, Blakely and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), all recognize an exception to the rule requiring jury trials for the fact of a prior conviction. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at pp. 488, 490; see also Almendarez-Torrez v. United States (1998) 523 U.S. at pp. 224, 243-244, 246.)Whether the prior conviction exception is properly interpreted to apply not only to the fact of a prior conviction but also to other issues relating to the defendant’s recidivism currently is pending before the California Supreme Court. (People v. Towne, S125677, review granted July 24, 2004; People v. Hernandez, S148974, review granted Feb. 7, 2007; People v. Pardo, S148914, review granted Feb. 7, 2007.)
In the present case, appellant has a lengthy criminal record and the jury found true two prior prison term enhancements. Appellant did not dispute the accuracy of his criminal history as set forth in the probation report. A single aggravating circumstance is sufficient to authorize the imposition of an aggravated term. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) The sentencing court largely based its selection of the upper term on appellant’s recidivism. Imposition of the upper term sentence does not violate a defendant’s jury trial right if a single aggravating factor has been established by a defendant’s prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816.) The court’s reliance on the facts of appellant’s prior convictions and prior sustained juvenile petitions was permissible. Consideration of appellant’s prior convictions did not infringe his jury trial right as it is interpreted in Blakely. The multiplicity of prior convictions is so closely related to the fact of the prior convictions themselves that it falls within the exception for such convictions contained within Blakely and Apprendi. This means that imposition of the upper term in this case was supported by factors that need not be found by a jury beyond a reasonable doubt. Hence, imposition of the upper term was constitutionally permissible. (People v. Black, supra, 41 Cal.4th at p. 820.)
In light of the foregoing, the propriety of the court’s consideration of other factors need not detain us. Blakely error is not structural and is reviewable under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24. (Washington v. Recuendo (2006) 548 U.S. __ [126 S.Ct. 2546]; People v. Sengpadychith (2001) 26 Cal.4th 316, 327; People v. Sandoval (2007) 41 Cal.4th 825, 838.) Under the circumstances, we find consideration of the following additional factors to be harmless beyond a reasonable doubt: (1) appellant’s dangerousness; (2) that his criminality demonstrates a pattern of conflict with peace officers; and (3) his unsatisfactory performance on probation and parole. In light of the trial court’s comments at sentencing, the presence of a valid aggravating factor and the absence of any mitigating factors, the record clearly demonstrates that the sentencing court would have imposed the upper term if these additional factors had been excluded from consideration.
DISPOSITION
The judgment is modified to stay the term imposed for count 5. The clerk of the Merced County Superior Court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy of the amended abstract to the Department of Corrections. As modified, the judgment is affirmed.
WE CONCUR: Harris, Acting P.J., Hill, J.