Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F07533
RAYE , Acting P.J.Defendant Jonathan Worthington punched his ex-girlfriend, battered her, and then declared: “This is the devil. I’m the devil.” An information charged defendant with infliction of corporal injury on a former cohabitant, assault by means of force likely to produce great bodily injury, and false imprisonment. (Pen. Code, §§ 273.5, subd. (a), 245, subd. (a)(1), 236.) A jury found defendant guilty of misdemeanor battery, assault, and misdemeanor false imprisonment. Sentenced to 365 days, defendant appeals, contending: insufficient evidence supports the false imprisonment conviction, the court inappropriately took over questioning of witnesses, ineffective assistance of counsel, and instructional error. We shall affirm the judgment.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Following an altercation between defendant and his former girlfriend, Sarah M., an information charged defendant with count one, infliction of corporal injury on a former cohabitant (§ 273.5, subd. (a)); count two, assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)); and count three, false imprisonment by violence, menace, fraud, and deceit (§ 236). The information alleged the infliction of great bodily injury as to counts one and two.
A jury trial followed. Sarah testified she began a sexual relationship with defendant in 2004. For approximately three months she lived with defendant at his mother’s house. Sarah paid defendant’s mother for rent, bills, and food. The pair moved out when defendant’s mother sold the house. Sarah moved in with a cousin; defendant moved in with a friend.
Shortly thereafter, defendant broke off the relationship. The relationship started up again about a month later.
In the summer of 2005 police arrested Sarah for driving under the influence. She had been driving a car owned by a friend of a man named Louis whom she had met a few days previously. Following her release, Sarah spent the next two nights with defendant.
A few days later a truck full of men accosted Sarah and defendant on the street. The driver, Louis, made threatening comments to defendant. Sarah told defendant to leave and went to talk to the men. Sarah left with the men in the truck. Police later contacted her and asked if she had been kidnapped. Sarah told the officers no kidnapping had taken place.
The next day Sarah went to defendant’s house to get work clothes for her job at Orange Julius. That evening she called defendant, telling him that she intended to return to change clothes for her job at Target. After Sarah returned to defendant’s house, she lay down on his bed to rest.
When defendant arrived he asked Sarah why she was there. Sarah replied that she had called and told him she was coming. A woman entered the room, looked at Sarah with disgust, and left, followed by defendant. Defendant returned and told Sarah the woman left because she was intimidated by Sarah.
Sarah told defendant she had tried to be nice to the woman, but defendant told her she was not going to work that night. Sarah believed defendant was drunk. Defendant called Sarah’s supervisor at Target and told him that Sarah was sick.
Defendant told Sarah he wanted to have sex with her, but Sarah told him she did not want to. Defendant began yelling about the other woman and came toward Sarah. Defendant called Sarah names, grabbed her by the hair, and punched her in the face. While holding her hair on both sides of her head, defendant head-butted Sarah on the forehead. He punched her again in the face. Still holding her by the hair, defendant pulled Sarah to the floor, kicked her in the stomach, and stepped on her throat.
Defendant dragged Sarah into the bathroom by her hair, pulled off her clothes, and pushed her into the shower. He told her he was “going to have a bloody mess.” Defendant head-butted her again and slapped her.
In an effort to calm defendant, Sarah talked to him. Defendant, with blood on his chest, proclaimed, “This is the devil. I’m the devil.” Defendant rubbed the blood and left.
Sarah bled from her cut cheek, and there was blood in the bathroom. Sarah did not notice any cut on defendant’s hand during the altercation. Sarah did not cut defendant and did not have a weapon.
As Sarah dressed, defendant yelled: “Does anybody want a piece of me? Does anybody want to fuck with me?” Sarah fled through a window leading to the side of the house by removing, then replacing, a screen. She went to the back of the house but could not climb over the fence. After hiding in the garage, Sarah called 911 on her cell phone.
The 911 operator asked if Sarah could go to the front of the house. Sarah responded: “[I]f they have him in custody. I have no way of getting to the front or else I would have.”
As Sarah hid, defendant left messages on her cell phone. In one message, defendant said: “Yeah, bitch, it’s just for you to run and hide, because I’m looking for you, and . . . trust me, when I get you, bitch, it’s a wrap. Good . . . night, sleep tight. When you wake up, I hope I’ll be there to bite your punk-ass, bitch.” In a message a few minutes later, defendant told Sarah: “. . . I’ll catch you and track you, bitch. And when I do, trust me, it’s over with. Bye.” Another message told Sarah to “[c]ome out and play.”
When police arrived, Sara came out of the garage. The officers told Sarah they would not take defendant into custody until they knew what had happened.
Sarah went by ambulance to the hospital, where she received stitches for a cut under her eye and was given pain medication. The examining physician testified he found injuries to Sarah’s neck and face but no injury to her abdomen.
Police officer Intae Moon took the initial report from defendant indicating that Sarah had been kidnapped. Moon testified that after officers contacted Sarah about the incident, Moon told defendant Sarah was actually with her new boyfriend. The information upset defendant.
Moon also responded to Sarah’s 911 call from defendant’s garage. As she and a fellow officer approached, defendant walked out the front door. Defendant’s palm was cut and his wrist scratched. He also appeared intoxicated. Moon saw no signs of a struggle in defendant’s bedroom.
Defendant’s mother testified in his behalf. She stated Sarah never lived in her home, but only stayed on weekends and never paid for anything.
Emily D., age 16, testified she went to defendant’s house with her boyfriend the night of the incident. Emily did not know defendant. At the house, Emily saw only defendant, a person named Brook, and “an old guy” sleeping in the living room. Emily was given a tour of the house and did not see Sarah. According to Emily, defendant was drinking beer, but she did not remember if he was drunk.
Emily testified that Brook started to give defendant a tattoo, so she went upstairs to watch a movie. Emily stated Sarah could not have entered through the front door because it was locked and Emily would have heard it open. After the movie her boyfriend and Brook left to get some food. Emily remained to use the bathroom. Shortly afterward, Emily heard a man and woman yelling. When she left the bathroom, Emily saw defendant and Sarah.
Sarah yelled at Emily, then ran into a bedroom and grabbed something from a dresser. Sarah came at Emily with the object she had picked up, but defendant pushed Sarah away.
Sarah fell, hitting her face against the wall. Sarah and defendant wrestled, and during the struggle Sarah hit her head on the floor. Defendant picked up Sarah and told her to clean up. Defendant walked out, slamming the door and leaving a bloody palm print on it.
Emily and defendant went outside. Emily saw a cut on defendant’s hand and testified that defendant was angry with Sarah. Emily’s boyfriend and Brook drove up, and Emily told them she wanted to leave right away. Two days later she told her boyfriend what had happened.
About a week later, Emily found out defendant had been arrested. Emily never inquired as to the reason for his arrest. She testified she did not come forward because she was afraid of Sarah. Defendant contacted Emily and asked her to give a statement, and she gave a statement to the public defender about two weeks prior to trial.
In rebuttal, Officer Moon testified that when she met defendant outside the night of the incident, “[h]e said his ex-girlfriend had came [sic] over, began to yell at him, and then she swung at him with something metal, which he caught, and then . . . he slammed her against the wall to get her off of him.” Initially, defendant said he didn’t know what the object was, then said it was a knife. He later said he did not know what it was.
On the way to jail, defendant said: “I’m a violent offender. Yes, I am. I did head-butt her. I know how to defend myself.” At the jail, defendant said Sarah had a “shaving razor” and she swung it at him. After defendant threw her to the floor, Sarah said she would take a shower and then “she would be his.”
Defendant did not mention that Emily or any other young girl was present that night. Sarah told Moon she and defendant had lived at his mother’s house for three months.
DISCUSSION
SUFFICIENCY OF THE EVIDENCE
Defendant challenges the sufficiency of the evidence to support his conviction for false imprisonment without force, violence, or menace. According to defendant, to constitute false imprisonment, the defendant must in some way restrain the victim, and here there was no substantial evidence Sarah was ever confined to defendant’s bedroom or the backyard.
In determining the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Valdez (2004) 32 Cal.4th 73, 104.) We presume the existence of every fact in support of the judgment that the trier of fact could deduce from the evidence, including reasonable inferences based on the evidence. (People v. Lee (1999) 20 Cal.4th 47, 58.)
Inferences reasonably deducible from the evidence constitute substantial evidence. The inferences need not be the only ones the evidence supports, and the evidence of the ultimate fact in question need not be strong. (People v. Wharton (1991) 53 Cal.3d 522, 546; People v. Johnson (1980) 26 Cal.3d 557, 576.)
“False imprisonment is the unlawful violation of the personal liberty of another.” (§ 236.) False imprisonment requires some restraint of the person. Any exercise of force, or express or implied threat of force, by which the other person is deprived of liberty or is compelled to remain where he or she does not wish to remain, is an imprisonment. The imprisonment may be committed by acts or words, or both, or by merely operating upon the will of the individual. (People v. Agnew (1940) 16 Cal.2d 655, 659-660.)
If the imprisonment is accomplished without the use of violence, menace, fraud, or deceit, it is a misdemeanor. Misdemeanor false imprisonment requires that the defendant intentionally restrained, confined, or detained a person, and that the defendant’s act made the person stay or go somewhere against that person’s will. (CALCRIM No. 1242; People v. Haney (1977) 75 Cal.App.3d 308, 313.)
According to defendant, the prosecution based its false imprisonment charge on Sarah’s remaining in the upstairs bedroom after the battery and her subsequent remaining in the backyard. Defendant contends there is no evidence he restrained Sarah when she fled from the bathroom to the bedroom, then to the backyard.
During closing argument, the prosecution stated: “The last count is false imprisonment[.] I put it up there just so that you could see the elements. There’s a lesser included to this one, too, which takes out violence or menace, but you know she stayed in that room as long as she did. The reason she stayed in that back yard was by his assault on her.”
Defendant argues Sarah was not restrained in the bathroom since she “freely moved from the bathroom to the bedroom, put on a black shirt, grabbed her cell phone and fled through the window.” Defendant contends “[t]here was no evidence he ordered her to remain, or threatened her if she attempted to leave.”
In the backyard, Sarah was not restrained because defendant did not know she was there and was trying to find her by periodically calling her cell phone. As defendant portrays it: “When [Sarah] left the bedroom and the house, she could have fled the area completely, but failed to do so because she tried to jump a fence she could not clear. [Citation.] It was [Sarah’s] chosen exit route, and her own physical inability to clear the fence, that kept her in the backyard. It was not [defendant].”
Defendant focuses too narrowly on isolated events during the altercation, ignoring the totality of the circumstances surrounding Sarah’s plight. Defendant battered and threatened Sarah, leaving her injured and bloody. He pulled her into the bathroom, pulled off her clothes, and hit her again. After announcing he was the devil, he stormed out of the bathroom, slamming the door. At this point defendant, at least momentarily, intended to and did restrain Sarah against her will.
After defendant went downstairs, Sarah dressed and escaped out a side window. Since defendant was shouting at the front of the house, Sarah took refuge in the garage in an effort to elude him. Defendant called frequently, threatening Sarah and attempting to locate her. Defendant’s belligerent and threatening presence outside, as well as the tall back fence, prevented Sarah from leaving. Again, defendant intended to and did restrain Sarah from leaving the property. We find sufficient evidence supports defendant’s conviction for misdemeanor false imprisonment.
The People cite People v. Fernandez (1994) 26 Cal.App.4th 710 and People v. Zilbauer (1955) 44 Cal.2d 43 for the proposition that false imprisonment does not require confinement in some type of enclosed space. Defendant attempts to distinguish the facts of both cases. However, it is not the facts of those cases on which the People rely, but the general proposition that restraint does not depend on confinement in a specific space.
QUESTIONING BY TRIAL COURT
Defendant objects to the court’s questioning of various witnesses during trial. He argues the questioning went far beyond the court’s role to question witnesses in order to clarify evidence for the jury. In fact, defendant charges, the court abandoned its role as impartial arbiter and donned the role of adversarial advocate in the People’s favor.
In particular, defendant faults the trial court for intruding into the examinations of Sarah and Emily. In addition, defendant charges that the court actively sided with Sarah by chastising defendant’s mother.
Although defendant failed to object during trial, he argues the issue is preserved for appeal since an admonition would not have cured the harm. In the alternative, defendant argues the failure to object stems from defense counsel’s ineffective assistance at trial. Courts have recognized the futility of objecting to instances of judicial misconduct, finding a failure to object in such situations will not preclude appeal. (People v. Sturm (2006) 37 Cal.4th 1218, 1237 (Sturm); People v. Perkins (2003) 109 Cal.App.4th 1562, 1567.) Given these cases and defendant’s alternative claim of ineffective assistance, we shall review defendant’s contention.
A trial court has both the discretion and the duty to ask questions of witnesses if done in an effort to elicit material facts or to clarify confusing or unclear testimony. However, the court may not assume the role of either the prosecutor or defense counsel. The court’s questioning must be temperate, not argumentative, and exceedingly fair. The questions must not convey to the jury the court’s opinion of the credibility of any witness. (People v. Cook (2006) 39 Cal.4th 566, 597.)
Defendant stresses the sheer volume of questions asked by the court, providing a chart showing the number of questions per witness on direct examination, cross-examination, and redirect examination. However, it is the quality or substance of the court’s questions we must consider, not the quantity. “‘The mere fact that the judge examined . . . at some length does not establish misconduct.’” (People v. Rigney (1961) 55 Cal.2d 236, 243.)
Defendant begins by objecting to the court’s questioning of Sarah about the source of the blood in the bathroom. After Sarah testified she did not know how the blood got into the bathroom, the following exchange took place: “[Defense Counsel]: So, you have no idea how that blood got in the bathroom? [¶] A: No. [¶] The Court: Hold on. [¶] Are you saying you know that blood was not yours? [¶] The Witness: I don’t know if it was mine or not. [¶] The Court: You don’t know whether or not it was yours? [¶] The Witness: Right. [¶] The Court: It could have been yours? [¶] The Witness: Yes, it could have been. [¶] The Court: You just don’t know? [¶] The Witness: Correct.”
Defendant argues Sarah’s testimony about the blood’s origin was significant since no forensic blood evidence was introduced at trial to identify whose blood it was. Defendant argued his injuries were more severe, and presumably bloodier, than Sarah’s, reflecting Sarah’s role as aggressor and not victim.
However, when read in context, the court’s questioning of Sarah reflects an effort to clarify her testimony. Previously, Sarah testified she did not know if the blood on the doorknob was hers. She also testified the blood on the shower curtain might have been hers. However, the prosecution did not question Sarah about bloodstains that appeared in various photographs. The court’s questions attempted to clarify Sarah’s testimony about the origin of the blood in the bathroom.
Defendant also criticizes the court’s questions to Sarah regarding whether she told police about the other woman she saw the night of the incident. The court asked: “Why didn’t you mention the business about there being a girl when you spoke to the police officers that night, the night that it happened? [¶] The Witness: I didn’t at the time. I wasn’t thinking about her. She didn’t . . . I didn’t feel intimidated by her. She wasn’t the one I was scared of, so I -- and she didn’t come to mind either. [¶] The Court: It just didn’t occur to you to mention her? [¶] The Witness: Correct. [¶] The Court: It wasn’t that you were trying to keep her out of it for some reason or another? [¶] The Witness: No. [¶] The Court: You just didn’t think to mention it? [¶] The Witness: Right.”
The court then asked a series of questions about the duration and location of Sarah’s interview by police. Finally, the court asked whether Sarah told the district attorney’s office about the girl. Sarah answered no and the court asked why not. Sarah responded: “. . . I didn’t feel that she was there long enough to -- I don’t know. [¶] The Court: Just didn’t think it was significant? [¶] The Witness: No, I didn’t.”
Defendant argues this colloquy reveals the court rehabilitated Sarah’s credibility, helpfully suggesting appropriate answers to explain her lapse in reporting the presence of a woman at the scene. The court also, defendant contends, emphasized to the jury that it found Sarah credible.
However, as the People point out, the court’s earlier questioning of Sarah revealed her previous arrest for driving under the influence. In addition, the court’s questioning elicited contradictory statements by Sarah regarding how many nights of the week prior to the incident she had spent with defendant. The court’s questioning of Sarah brought forth information clearly detrimental to her credibility.
As to the complained-of questions regarding Sarah’s failure to reveal a woman was present the night of the incident, the testimony elicited by the court favored neither side. The court’s questioning was an attempt to clarify the contradictory statements Sarah gave for failing to mention the woman’s presence; it did not validate or excuse her failure to tell officers about the woman.
Defendant also takes issue with the court’s questioning of Sarah’s supervisor regarding the phone call defendant made. The court asked the supervisor whether defendant identified himself as Sarah’s fiancé or her husband. The court also asked what the supervisor told Sarah’s direct supervisor about the reason Sarah was not coming in.
Although defendant concedes this was a relatively minor point, he argues the court’s questions bolstered Sarah’s credibility by supporting her version of events. We agree the point is minor and find no support for defendant’s assertion that the court was somehow validating Sarah’s credibility.
Defendant asserts the court assumed a very active role in the questioning of Emily, grilling her about why she left the scene without speaking to police, questioning her failure to tell her boyfriend about the incident, and failing to come forward after defendant was arrested. However, our review of the record reveals the court’s questions, although extensive, were merely attempts to clarify Emily’s actions following the incident.
Finally, defendant objects to remarks made by the court to defendant’s mother. The prosecutor asked: “Did you ever see Sarah’s children? [¶] A: Yes, I did see. [¶] Q: Where would you see her children? [¶] A: She would have bring [sic] the two children. She had three, but she never had the third one because the third one didn’t want to be with her Mom. There was [sic] some problems. I’m not sure. [¶] The Court: That was gratuitous, wasn’t it? [¶] . . . [¶] . . . You didn’t really have to say that to answer the question, did you? You don’t like Sarah, do you? [¶] The Witness: No, I really did like Sarah, yeah. Yes, I did.” (Italics added.)
Defendant characterizes the court’s comments to defendant’s mother as “especially prejudicial” since the witness was both a defense witness and a relative. Defendant also points out that it would have been more appropriate for the prosecution to object to the mother’s comments about Sarah’s parenting skills than for the court to interject its “gratuitous” comment. According to defendant, these comments signaled to the jury that the court sided with Sarah and not with defendant or his mother.
The People argue the court’s comment was “correct, as would have been obvious to the jury already.” In addition, the People contend, since the jury acquitted defendant of cohabitant abuse, it gave substantial credit to defendant’s mother’s testimony on the issue of how long defendant and Sarah lived together.
We are not persuaded. While defendant’s mother’s comment may have been gratuitous, the court’s response was similarly ill advised. The court could easily have asked the jury to disregard the comment about Sarah and her children without interjecting personal questions about defendant’s mother’s feelings for Sarah or labeling the comment gratuitous. The exchange cast defendant’s mother in an unflattering light and put the court in the position of personally admonishing a witness.
“Jurors rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials. [Citation.] When ‘the trial court persists in making discourteous and disparaging remarks to a defendant’s counsel and witnesses and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge . . . it has transcended so far beyond the pale of judicial fairness as to render a new trial necessary.’ [Citation.]” (Sturm, supra, 37 Cal.4th at p. 1233.)
Although the court’s comments to defendant’s mother were inappropriate, they were neither persistent nor frequent. They were two brief, indiscrete comments, not the “numerous instances of misconduct” that create an atmosphere of unfairness likely to lead the jury to conclude the trial court found defendant’s evidence to be questionable or weak. (Sturm, supra, 37 Cal.4th at p. 1243.) Nor can it be said of these brief ill-advised comments that “‘when added together their influence increases as does the size of a snowball rolling downhill.’” (Ibid.)
We also note the trial court instructed the jury that it was not to take anything the court “said or did during the trial as an indication of what [the court thought] about the facts, the witnesses, or what [its] verdict should be.” Given the spare, brief nature of the comments we find no judicial misconduct.
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant points to several instances in which he claims counsel performed ineffectively in his behalf. In order to establish ineffective assistance, the defendant must show both inadequate performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674]; People v. Pensinger (1991) 52 Cal.3d 1210, 1251-1252.) In addition, we defer to a counsel’s reasonable tactical decisions in examining an ineffective assistance claim. There is a strong presumption that counsel’s conduct falls within the range of reasonable representation. We accord great deference to counsel’s tactical decisions and will not second-guess reasonable, albeit difficult, tactical decisions in the harsh light of hindsight. (People v. Stanley (2006) 39 Cal.4th 913, 954.)
Defendant faults counsel’s failure to stipulate that his incarceration while he was dating Sarah was because of traffic offenses. Sarah testified that she dated defendant for about 10 months and “the majority of the time, he was incarcerated.” Defense counsel objected and the court ordered the answer stricken. Defense counsel argued Sarah’s statement was ground for a mistrial. The prosecution stated he had admonished Sarah not to refer to defendant’s incarceration and offered to stipulate that defendant was incarcerated for traffic offenses. Defendant argues defense counsel was ineffective for not agreeing to the stipulation or, in the alternative, moving for a mistrial.
However, immediately following Sarah’s comment, the court admonished the jury to disregard her testimony. Given the court’s quick response, defense counsel could have concluded a mistrial motion was not appropriate.
As for the prosecution’s offer of a stipulation, defense counsel may have made a tactical decision not to revisit the very testimony stricken by the court. We disagree with defendant’s statement that “it is of no import that the court ordered the answer stricken.” The court’s action removed the issue from the jury’s consideration; any later stipulation, while identifying the offense, would have refocused the jury on defendant’s prior criminal record, a refocus defense counsel could reasonably have sought to avoid.
Defendant also argues defense counsel performed ineffectively in failing to object to the court’s questioning discussed above. However, our review of the record reveals that although one of the court’s comments was injudicious, the court’s questioning did not prejudice defendant. Since defendant cannot establish that defense counsel’s alleged deficiency resulted in prejudice, defendant cannot establish ineffective assistance of counsel.
UNANIMITY INSTRUCTION
Finally, defendant argues the trial court erred in failing to instruct the jury that it must unanimously agree on one of the factual scenarios on which it relied to convict him of false imprisonment. The People contend the court committed no error since the evidence revealed a unitary set of criminal acts by defendant.
In a criminal case, a jury verdict must be unanimous. In addition, the jury must unanimously agree the defendant is guilty of a specific crime. Therefore, 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. If, however, the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or theory whereby the defendant is guilty. (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
Even when the prosecution proves more unlawful acts than were charged, no unanimity instruction is required if the acts proved constitute a continuous course of conduct. (People v. Napoles (2002) 104 Cal.App.4th 108, 115-116.) The continuous conduct rule applies when the defendant 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. Stankewitz (1990) 51 Cal.3d 72, 100 (Stankewitz).)
According to defendant, the prosecution pursued two theories to support the false imprisonment charge: that defendant imprisoned Sarah in the upstairs bedroom and/or that defendant imprisoned Sarah in the backyard. Therefore, the court was required to instruct pursuant to CALCRIM No. 3500, which states: “The defendant is charged with . . . . [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”
The People argue that although Sarah moved between the bedroom and the backyard, defendant’s acts against Sarah constitute a continuous course of conduct, which did not require a unanimity instruction. We agree.
Defendant beat and threatened Sarah and then stormed out of the bedroom. He stood outside the front of the house, yelling threats as Sarah fled through a window. Defendant, stationed outside, prevented Sarah from leaving, and she sought refuge in the backyard. Defendant continued to call Sarah’s cell phone, uttering threats. After Sarah managed to summon help, she was able to leave in the presence of officers.
Here, defendant’s restraint of Sarah was accomplished by his actions the night of the incident. He beat Sarah, threatened her, and then blocked her exit from his home. The acts were so closely connected as to form a single transaction. (People v. Diedrich (1982) 31 Cal.3d 263, 282.)
In addition, defendant offered essentially the same defense to each of the acts, and there was “no reasonable basis for the jury to distinguish between them.” (Stankewitz, supra, 51 Cal.3d at p. 100.) In his defense, defendant offered an alternative scenario in which Sarah was the aggressor, negating any intent on his part to restrain her from leaving.
Defendant argues the continuous course of conduct exception does not apply because the two locations where Sarah had been falsely imprisoned were “quite distinct.” In support, defendant relies on People v. Melhado (1998) 60 Cal.App.4th 1529 (Melhado).
However, the facts of Melhado differ markedly from the facts before us. In Melhado, the defendant drove to the victim’s shop in the morning and issued a series of violent threats. The defendant left and returned several hours later, pulled out a grenade, and uttered several more violent threats. (Melhado, supra, 60 Cal.App.4th at p. 1533.) The appellate court held the trial court erred in failing to give a unanimity instruction as to which set of threats the jury relied on to convict the defendant. (Id. at pp. 1534-1536.)
Here, in contrast, neither defendant nor Sarah left or returned to the scene. Nor did the false imprisonment end and then resume several hours later. Instead, defendant restrained Sarah, albeit in two nearby places, during a continuous course of conduct. The trial court did not err in failing to give the unanimity instruction.
DISPOSITION
The judgment is affirmed.
We concur: HULL , J., ROBIE , J.