Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Edward P. Allard III, Judge, Super. Ct. No. SCS202653
BENKE, J.
Columbus White was convicted of assault by means likely to produce great bodily injury, making a criminal threat, pimping and pimping a minor over 16 years of age. White was sentenced to a prison term of six years. He appeals, arguing the trial court erred in failing to instruct concerning the requirement of jury unanimity with regard to the making of a criminal threat charged and erred in imposing the six-year term.
FACTS
A. Prosecution Case
Lisa P. was a prostitute. Appellant was her pimp. On June 2, 2006, while the two were staying at a motel, Lisa told appellant she no longer wanted to be a prostitute. Appellant punched her in the face, kicked her in the stomach and tried to suffocate her with a pillow. Appellant stopped and told Lisa he would kill her if she left or did not give him her earnings. Appellant told her that his sister would beat her up. Appellant took Lisa's cell phone, identification and social security card to prevent her from leaving.
Lisa went to the motel office. Motel staff noticed she was injured and upset and called the police. Appellant came to the office and told Lisa to leave with him. The motel manager told appellant to leave and he did so.
When the police arrived, they noticed Lisa's face was swollen. They found appellant nearby. At first he denied knowing Lisa and being at the motel with her. When told he was under arrest for robbery, he stated he did not need to rob Lisa because she would give him her money.
B. Defense Case
Defense counsel argued Lisa was not worthy of belief and independent evidence failed to adequately corroborate her claims of being beaten and threatened by appellant.
DISCUSSION
A. Unanimity Instruction
Appellant argues the trial court erred as to the charge of making a criminal threat when it failed sua sponte to instruct the jury concerning the requirement for unanimity as to the act supporting that charge.
1. Background
Lisa testified that at some point on the day appellant assaulted her, she told him she did not want to give him her money. He replied he would kill her if she left or did not give him her money. Lisa could not remember if appellant made this statement before or after he assaulted her. Lisa also testified that after he assaulted her, he told her he was going to get his sisters to beat her up.
During argument, the prosecutor relied solely on appellant's threat to kill Lisa as the basis for the charge of making a criminal threat. In his argument, defense counsel mentioned Lisa's testimony that appellant threatened to have his sisters beat her up. Defense counsel did so, however, merely in an attempt to impeach Lisa. Counsel noted Lisa did not tell the investigating officers that appellant threatened to have his sisters beat her up.
2. Law
A unanimity instruction must be given when the evidence shows more than one criminal act was committed which could constitute the charged offense, and the prosecution does not rely on any single act as a basis for the charge. Such an instruction is not required, however, when the multiple acts are part of a continuous course of conduct. This is so because the multiple acts constitute one discrete criminal event. The continuous conduct rule applies when the defense offers essentially the same defense to each of the acts and there is no reasonable basis for the jury to distinguish between them. (People v Flores (2007) 157 Cal.App.4th 216, 222-223.)
When the evidence shows more than one criminal act that could support the charged offense and the prosecution does not rely on a single action, an instruction on unanimity must be given even if not requested. (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
3. Discussion
The trial court properly did not give an instruction on the requirement of unanimity. While Lisa was not specific concerning exactly when the threats occurred, it is clear they occurred close in time, were part of appellant's attempt to dissuade her from leaving appellant's "employ" and were both addressed by the same defense, i.e., Lisa is a liar and none of her claims were worthy of belief. There was no reasonable basis for the jury to distinguish between appellant's contemporaneous threats. The continuous conduct rule applies, and any instruction requiring unanimity would have been improper.
We further note that while the prosecution did not make a formal election to base its charge on appellant's threat to kill Lisa, it was the only threat relied on by the prosecutor in argument. This certainly makes sense because not only was the threat to kill Lisa the most serious, it was also the most immediate and unconditional.
B. Resentencing
Appellant filed a supplemental opening brief, arguing the trial court erred in the manner it resentenced him after an error was identified in his original sentence. At the original sentencing hearing, the trial court sentenced appellant to what it believed was the middle term of six years for pimping a minor over 16 years of age conviction (count 4). In fact, the middle term for that offense is four years. At the resentencing hearing, appellant was sentenced to the upper term of six years on count 4. Appellant contends this was error.
1. Background
After appellant's conviction, the trial court imposed the middle term on each of his offenses. The court declared the principal term to be that for count 4 and imposed what it believed to be the middle term of six years. The terms for the remaining offenses were order served concurrently.
By letter, the Department of Corrections notified the trial court the middle term for count 4 was not six years but four. The department asked the illegal sentence be corrected.
At the resentencing hearing, the trial court noted that at the time appellant was originally sentenced, the probation department recommended and the prosecution argued for a term considerably longer than the six years the trial court eventually imposed. The court noted that because appellant was convicted of multiple counts, the sentence range was wide. The court stated that at the time it originally sentenced appellant, it concluded based on its review of the facts that a sentence of six years, what it believed to be the middle term for count 4, was appropriate.
At the end of the resentencing hearing, the trial court sentenced appellant to the upper term of six years on count 4 and stated specific factors supporting imposition of that term. The court, as it had at the original sentencing hearing, imposed the middle term on the remaining counts and ordered they be served concurrently. The court noted that at the time it originally sentenced appellant, it believed, in light of the whole case, the appropriate term was six years. The court could have reached that figure in a variety of ways. The means it used was simply to impose what it believed was the middle term on count 4, i.e, six years.
2. Discussion
Relying on a single case, People v. Drake (1981) 123 Cal.App.3d 59, appellant argues the trial court exceeded its jurisdiction when, after first imposing the middle term on count 4, it resentenced him to the upper term on that count as a means to reach the same sentence of six years. Appellant contends that having originally imposed the middle term, it was required on resentencing to impose again the middle term even if the term of years was less.
In Drake the trial court imposed the middle term of three years, plus seven years on other counts, for a total of ten years. After determining the sentence was unauthorized because it was longer than double the base term (former Pen. Code, § 1170.1, subd. (f)), the trial court raised the midterm to the upper term and stayed some of the remaining counts to arrive at the same total of 10 years. The Drake court modified the judgment, holding any portion of the sentence in excess of double the base term, six years, was void, that the imposition of the midterm had been a proper exercise of the court's discretion and that the trial court improperly enhanced defendant's sentence when it changed his sentence from the midterm to the upper term. (People v. Drake, supra, 123 Cal.App.3d at pp. 63-64.)
Later courts have rejected Drake's reasoning. In his reply brief, appellant acknowledges that in the 27 years since Drake was decided, it has been consistently criticized and seldom followed. (See People v. Lai (2006) 138 Cal.App.4th 1227, 1245; People v. Burbine (2003) 106 Cal.App.4th 1250, 1256-1260; People v. Castaneda (1999) 75 Cal.App.4th 611, 613; People v. Kelly (1999) 72 Cal.App.4th 842, 846; People v. Calderon (1993) 20 Cal.App.4th 82, 88-89; People v. Begnaud (1991) 235 Cal.App.3d 1548, 1557; People v. Stevens (1988) 205 Cal.App.3d 1452, 1454-1458; People v. Burns (1984) 158 Cal.App.3d 1178, 1183, fn. 6; People v. Savala (1983) 147 Cal.App.3d 63, 68-69.) In his opening brief, appellant cites none of these cases critical of, or rejecting, Drake's reasoning.
As the court stated in People v. Castaneda, supra, 75 Cal.App.4th at pages 613-614: "As the court explained in People v. Stevens, supra, 205 Cal.App.3d 1452, 'The approach in Drake . . . appears to have been premised on an assumption, explicitly articulated in People v. Swanson (1983) 140 Cal.App.3d 571, that "a sentencing judge is required to base his decision on the statutory and rule criteria, on an analysis of legitimate aggravating and mitigating factors, and not on his subjective feeling about whether the sentence thus arrived at seems too long, too short, or just right. He is not permitted to reason backward to justify a particular length sentence which he arbitrarily determines." [Citation.] However, the mechanics of sentencing are not necessarily as rigid as portrayed in Swanson. A judge's subjective determination of the value of a case and the appropriate aggregate sentence, based on the judge's experiences with prior cases and the record in the defendant's case, cannot be ignored. A judge's subjective belief regarding the length of the sentence to be imposed is not improper as long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria. (See, e.g., Pen. Code, § 1170 et seq.; Cal. Rules of Court, rule 401 et seq.)' . . . ."
We agree. In the present case, the trial court acted properly in resentencing appellant to the upper term on count 4 to achieve the term it believed proper under the circumstances and based on applicable sentencing rules.
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., NARES, J.