Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA307033 Norman J. Shapiro, Judge.
Kiana Sloan-Hillier, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, Acting P. J.
Montry Spears appeals from the judgment entered following a jury trial in which he was convicted, as charged, of robbery with the use of a deadly weapon (a screwdriver) and assault with a deadly weapon (a screwdriver), and a bifurcated court trial in which he was found to have suffered prior felony convictions. He contends that the trial court erred in failing to instruct on jury unanimity and simple assault and that he was improperly sentenced.
BACKGROUND
On the morning of August 3, 2006, defendant entered an AM-PM Market at an Arco gas station in Los Angeles. He picked up a cup of coffee and pastries, which he put in a plastic bag, and gave clerk David Cruz an ATM card to pay for his purchases. Cruz swiped defendant’s card several times, but the card was declined for insufficient funds. When Cruz told defendant about this, defendant started to walk toward the exit of the market, holding the coffee and the plastic bag. Cruz grabbed the bag out of defendant’s hand. As defendant continued to walk toward the exit, he picked up a lighter and a banana. Defendant then left the market without paying for the items. Cruz did not pursue defendant, noting in his testimony that the items taken were of little value.
Defendant returned to the market about an hour later. He spoke with Cruz in a manner that made Cruz think defendant was crazy. Defendant next took another lighter and another banana. Cruz told defendant he would not allow defendant to take items from the market a second time and that he would call the police. Cruz then attempted to close the doors of the market so defendant could not leave. As Cruz was doing so, defendant pulled out a long screwdriver and stabbed Cruz in the shoulder, ripping Cruz’s shirt and causing a three-inch laceration. Defendant unsuccessfully attempted to stab Cruz again and punched Cruz. Cruz retreated to the parking lot, walking backward out the door while observing that defendant still had the screwdriver in his hand. Defendant followed Cruz into the parking lot. Defendant placed the screwdriver under his shirt and walked away.
Cruz summoned nearby police officers and pointed toward defendant, who was across the street. The officers detained defendant but were unable to find a screwdriver or any other weapon on defendant’s person or at the scene.
Testifying in his own behalf, defendant said that while at the AM-PM Market the first time, Cruz did something to his ATM card to make it not work. He left without paying for the items and decided to take the bus to a McDonald’s restaurant. The bus did not stop near a McDonald’s, so he went to a store where he bought some food, including a banana. Defendant next went back to the AM-PM Market. At that point his mind was “distorted,” like he was on an “amnesia trip.” When Cruz was trying to close the doors, defendant rushed out, forcefully bumping into Cruz. Defendant saw Cruz holding his shoulder and looked into his own shirt pocket, where he saw a screwdriver with a “clip” “like an ink pen.” When defendant was later approached by the police, he dropped the screwdriver.
The prosecutor argued to the jury that a robbery had occurred because, although Cruz allowed defendant to leave the market after the first “theft,” defendant returned and tried to take a second lighter and banana. And when Cruz then attempted to block defendant’s exit from the market and defendant physically resisted Cruz’s attempt to take back the stolen property, the element of force or fear was established. The prosecutor continued that under “[t]he same set of the facts,” “you have [an] assault with a deadly weapon, and that’s with the screwdriver.”
In defense counsel’s argument, he emphasized to the jury that defendant had not been charged with any crime arising from his first entry into the market. Counsel asserted there was a lack of evidence of an intent to permanently deprive and that there were inconsistencies in the evidence of assault, especially as to the description of the screwdriver.
In the bench trial that took place after the jury’s verdicts had been returned, defendant was found to have suffered a 1984 conviction of manslaughter under both the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and Penal Code section 667, subdivision (a). He was also found to have suffered a 1993 conviction of corporal injury to a spouse and a 2001 conviction of drug possession under Penal Code section 667.5, subdivision (a).
DISCUSSION
1. Unanimity Instruction
Defendant contends that the trial court erred in failing to instruct, sua sponte, on jury unanimity. We disagree.
“In a criminal case, . . . the 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. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
Here, the prosecutor elected to charge defendant with only the crimes committed when defendant returned to the AM-PM Market, and both counsel argued the case focusing on this second incident. Nevertheless, the jury expressed some confusion about the relationship between the two episodes. Shortly after deliberations began, the jury asked, “‘Do we need to separate the morning robbery from the second alleged robbery?’” and “‘Does it matter when the banana and lighter were taken?’” After consulting with counsel, the court directed the jury’s attention to the robbery verdict form, which included a blank space for finding whether or not defendant had used a screwdriver in the commission of the offense. The court further directed the jury’s attention to instructions that each count had to be decided separately and on the elements of robbery.
Following these instructions, the foreperson told the court, “I think our confusion lies in whether the one count of robbery includes both times that the defendant was in the store.” The court characterized the statement as asking: “‘Does the one count of robbery include both times the defendant was in the store?’” After again consulting with counsel, the court answered the question as follows: “No, but you may consider all the evidence received in this trial in determining the issues that you need to resolve as to these counts.”
Defendant has provided no authority, nor are we aware of any, that a unanimity instruction is required where the evidence and arguments point to only one incident as a basis for charged crimes but the jury nevertheless expresses confusion about the relevance of another incident. In the face of such a situation here, the trial court accurately told the jury that the single count of robbery with which defendant was charged did not include both times defendant was in the market. There was no possibility of confusion or prejudice emanating from the answer given by the court. Nor, as also argued by defendant, was there any possibility that the jury might be confused about whether the charged assault took place in the market when defendant used the screwdriver, as opposed to defendant’s following Cruz into the parking lot, screwdriver still in hand. Accordingly, defendant’s contention that a unanimity instruction was required must be rejected. (See People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.)
2. Simple Assault
Defendant further contends that the trial court erred in failing to instruct, sua sponte, on the lesser included offense of simple assault. Although the court must instruct on lesser offenses when supported by substantial evidence (People v. Mendoza (2000) 24 Cal.4th 130, 174), defendant’s contention does not rely on any of the evidence presented during the trial. Rather, defendant focuses exclusively on an argument made by the prosecutor at sentencing that Penal Code section 654 did not bar separate punishment for defendant’s crimes because the assault “pertain[ed] solely to the defendant advancing on Mr. Cruz as Mr. Cruz is attempting to get away from the defendant, while the defendant is still holding the weapon in his hands, which does constitute an assault.” (The court rejected this argument.)
Defendant’s contention on appeal is unavailing. The only theory of assault charged in the information and on which evidence was presented at trial is that the assault was committed with the screwdriver. Thus, regardless of the prosecutor’s apparently different views of the evidence for purposes of guilt as opposed to sentencing, instruction on the lesser offense of simple assault was not required. (People v. Mendoza, supra, 24 Cal.4th at p. 174; People v. Lesnick (1987) 189 Cal.App.3d 637, 643.)
3. Sentencing
Defendant was sentenced to the upper term of 5 years for robbery, doubled to 10 years under the Three Strikes law. (Enhancements of 1 year for weapon use and 5 years for defendant’s prior conviction were also imposed, for an aggregate term of 16 years.) With respect to the upper term, the court cited as factors in aggravation that the offense involved great violence, disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)), that defendant had engaged in violent conduct that indicates a serious danger to society (id., rule 4.421(b)(1)), that defendant’s crimes were of increasing seriousness in nature (id., rule 4.421(b)(2)), that defendant’s prior performance on probation or parole had not been satisfactory (id., rule 4.421(b)(4)), and that defendant had served a prior prison term (id., rule 4.421(b)(3)). The court further stated that it was “not going to take the prior prison term into consideration, because that will be used under the 667(a) section here.”
In an opening brief filed before the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799, defendant contends that imposition of the upper term violated Cunningham v. California (2007) ___ U.S.___ [127 S.Ct. 856]. The contention is without merit.
“[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, 41 Cal.4th at p. 816.) The prior convictions exception includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.) “The [trial] court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.)
Here, defendant’s prior record (excluding the conviction that was used to enhance his sentence) constituted legally sufficient aggravating circumstances to permit imposition of the upper term without infringing on his constitutional right to a jury trial. (People v. Black, supra, 41 Cal.4th at p. 819.) Defendant’s contention of sentencing error must therefore be rejected.
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, J., JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.