THE PEOPLE v. GARY POWELL (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant and appellant Gary Powell was charged with two crimes—assault with a deadly weapon (a knife) on Sonny Dhillon in violation of Penal Code section 245, subdivision (a)(1),¹ with the specific allegation that defendant personally used the weapon (§ 12022, subd. (b)(1)), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)) on Dustin Latray.   It was alleged defendant had two convictions for serious or violent felonies within the meaning of the three strikes law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)), 667, subd. (a)), and that defendant served four prior prison terms as defined in section 667.5, subdivision (b).

The jury found defendant guilty of both counts, with a special finding that defendant personally used a deadly weapon in assaulting Dhillon.   Defendant waived his jury trial rights on the recidivist allegations, which the court found to be true.   However, the trial court granted defendant's Romero motion ² and dismissed one of the convictions under the three strikes law.

The trial court imposed a 15–year prison sentence, as discussed more fully below.   Defendant received credit for 518 days served in presentence custody, plus 76 days of conduct credit.

In his timely appeal, defendant contends his conviction for assaulting Latray must be reversed because the trial court prejudicially failed to instruct the jurors they must unanimously agree that the same criminal act supported the conviction.   He also contends he is entitled to additional days of presentence custody credit because the court erroneously applied the 15 percent credit limitation under section 2933.1, rather than the greater percentage set forth in section 4019.   We asked the parties to address various sentencing issues in supplemental letter briefing.   Defendant's first contention fails because no unanimity instruction is required where, as here, the prosecution made an election as to the specific act on which the charge was based and, independently, the “continuous conduct” exception to the unanimity rule applied.   Defendant's argument as to additional custody credits is correct, and we order modification to the credits awarded.   As a result of sentencing errors, we remand the case for resentencing.

STATEMENT OF FACTS

The 7–Eleven Incident

On October 19, 2008, at 9:00 a.m., Dhillon was working the counter at a 7–Eleven store on Vanowen Street.³  Defendant was screaming and cursing as he entered the store.   He took a bottle of Smirnoff from the cooler and placed it on the counter.   Dhillion refused to sell the alcoholic beverage to defendant because defendant was “drunk already.”   After Dhillon replaced the bottle, defendant took another from the cooler, while continuing to yell and curse.   When Dhillon approached, defendant dropped the bottle, pulled a knife from his pocket, and tried to stab Dhillon.   Defendant repeatedly lunged at Dhillon with the pocket knife and cut his wrist.   Dhillon tried to disarm defendant by grabbing his shirt and hand, but he was unable to get the knife, so he released defendant, who ran out of the store.

The Smart and Final Incident

Latray was the assistant manager at a Smart and Final store on Sherman Way, located close to the 7–Eleven on Vanowen.   At approximately 10:00 a.m., defendant entered the store and asked to redeem bottle recycling vouchers, as he had done on prior occasions.   Defendant objected to standing in line with the other customers at the cash register and demanded the cashier pay him immediately.   Defendant swore at Latray, who insisted defendant get in line.   Defendant refused and was told to leave the store.   He did so initially, but soon returned, more angry than before.   Latray called the police on his cell phone.   While Latray was on the phone with the 9–1–1 operator, defendant approached one of the cashiers, frightening her.   Latray stood between them and told defendant to move away.   Defendant struck Latray on the right cheek and ran out of the store.   Latray ran after him, while remaining on the phone with the operator.

Defendant was “ranting and raving” in the store's parking lot.   He picked up a coffee can, threw it at Latray from approximately six feet away and charged at him, knocking Latray off his feet and onto the ground.   The two wrestled and punched each other.   Latray withdrew from the struggle when customers approached from the store.   The operator told him the police were on their way.   Various video recordings of the incident, taken by the store's inside and parking lot security cameras, were played to the jury.   The recordings began at 10:07 a.m., when defendant entered the store.   At 10:12, the video showed Latray being taken to the ground by defendant.   An audiotape of Latray's phone call to the 9–1–1 operator was also played to the jury.   Latray was not injured during the incident.

DISCUSSION

I. Unanimity Instruction

Defendant argues his conviction for assaulting Latray must be reversed because the trial court prejudicially failed to instruct the jurors they must unanimously agree that the same criminal act—either the act of striking Latray's face inside the store or tackling him in the parking lot—was the factual basis for the conviction.   Under well established precedent, no such instruction was required in light of the prosecution's election to proceed solely on the latter act.   Moreover, given that the two acts were part of a continuous course of conduct, no unanimity instruction was required.

“In a criminal case, a jury verdict must be unanimous.  [Citations.]  ․ Additionally, 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.”  (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo ).)   The unanimity requirement “ ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’  (People v. Sutherland (1993) 17 Cal.App.4th 602, 612.)”  (Russo, supra, at p. 1132.)   In practice, this means “the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events'․”  (Id. at p. 1135, quoting People v. Perez (1993) 21 Cal.App.4th 214, 223.)

The trial court has a sua sponte duty to give a unanimity instruction when no election has been made by the prosecutor.  (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 (Melhado ).)  “When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.”  (Ibid.)

Here, the prosecution made it clear to the jury that it was relying on the act in the parking lot as the basis for the charged offense.   In his opening statement, the prosecutor mentioned that defendant first punched Latray inside the store, but emphasized that it was defendant's conduct outside the store, when he struck Latray and brought him to the ground, that was the basis for the charge.   Similarly, in his closing argument, the prosecutor stated that defendant first “threw the punch” at Latray's head inside the store, and the “assault continued” when the two immediately ran out of the store into the parking lot.   After describing the altercation in the parking lot, the prosecutor stated:  “The force that was used in terms of that second assault” constituted “the force likely to produce great bodily injury․”  As he explained, the punch inside was “[p]robably not” “something that we would consider to be assault by force likely to produce great bodily injury.”   In contrast, the prosecutor argued, the event in the parking lot when defendant ran at Latray and took him down onto the concrete was the kind of assault in which “someone could be seriously injured.”

Defense counsel responded that the video showed little, if any, contact during the altercations inside and outside the store, as corroborated by Latray's lack of injury.   In rebuttal, the prosecutor's argument focused entirely on events in the parking lot.   With regard to the prior events inside, the prosecutor conceded that it was not adequate to support the charged offense:  “That's not assault likely to produce great bodily injury․  We have an entirely different demonstration of force outside in that parking lot on an entirely different level.”

Thus, because no reasonable juror could have been in doubt as to the prosecution's election, the trial court was not obliged to instruct on unanimity.  (See Melhado, supra, 60 Cal.App.4th at p. 1539.)

Moreover, “[w]hen two offenses are so closely connected in time that they form part of one transaction, no unanimity instruction is required.  (See People v. Diedrich (1982) 31 Cal.3d 263, 282.)”  (People v. Lopez (2005) 129 Cal.App.4th 1508, 1533.)   Such was the case here.   The punch inside the store was part and parcel of the same criminal behavior by defendant and was separated by approximately five minutes.

In any event, for the reasons set forth above, the failure to give a unanimity instruction would have been harmless under the circumstances, whether assessed under the standard for constitutional violations or state law error.   We therefore need not decide which standard applies.  (Compare People v. Thompson (1995) 36 Cal.App.4th 843, 853 [“Failure to give a unanimity instruction is governed by the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24, which requires the error to be harmless beyond a reasonable doubt”] with People v. Vargas (2001) 91 Cal.App.4th 506, 562 [People v. Watson (1956) 46 Cal.2d 818 is the applicable standard];  People v. Frederick (2006) 142 Cal.App.4th 400, 419 [error found harmless under either standard].)   In light of the prosecutor's unambiguous election and concession that the first incident would not support a finding of a likelihood of producing great bodily injury under section 245, subdivision (a)(1), the jurors would have had no reason to think otherwise.

II. Custody Credits

Defendant contends he received insufficient presentence custody credit because the trial court erroneously applied the 15 percent credit limitation under section 2933.1, rather than the greater percentage set forth in section 4019.   We agree.

“In general, a defendant receives what are commonly known as conduct credits toward his term of imprisonment for good behavior and willingness to work during time served prior to commencement of sentence.”  (People v. Thomas (1999) 21 Cal.4th 1122, 1125.)  “Section 2933.1, subdivision (a), provides:  ‘Notwithstanding any other law, any person who is convicted of a felony offense listed in Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.’   Section 2933.1, subdivision (c), provides ‘[n]otwithstanding Section 4019 or any other provision of law,’ ‘for any person specified in subdivision (a),’ the maximum presentence conduct credit that may be earned is 15 percent.”  (Id. at p. 1127.)   Section 667.5, subdivision (c), lists the specific circumstances that qualify as a violent felony.

We agree with the parties that defendant's offenses under section 245, subdivision (a)(1), do not qualify as violent felonies for purposes of section 2933.1's conduct credit limitation.   Accordingly, defendant was entitled to accrue presentence custody credits at the rate specified by section 4019:  “Under Penal Code section 4019, a defendant receives two days of conduct credit for each four-day block of time served.  ‘The proper method of calculating presentence custody credits is to divide by four the number of actual presentence days in custody, discounting any remainder.   That whole-number quotient is then multiplied by two to arrive at the number of good/work credits.   Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits.  [Citations.]’  [Citation.]”  (People v. Kimbell (2008) 168 Cal.App.4th 904, 908–909.)

As the Attorney General points out, defendant is entitled to a total of 776 days of presentence custody credit, consisting of 518 days of presentence custody and 258 days of conduct credits.

III. Additional Sentencing Issues

After an initial review of the record, this court invited further briefing of sentencing issues.   The parties have submitted letter briefs in response.

A. The Sentence Imposed in Count 1 (Victim Dhillon)

The trial court made the following statement regarding the sentence on count 1:  “So the court is going to sentence defendant as follows:  Probation is denied.   The court is looking at count one, count one being the prime count.   The court feels justified under the review of the entire record, including the prior conviction, the nature of the offense itself, [and the] nature of the reoccurrence of 2006 on the same offense, to sentence you to the high term of four years doubled pursuant to [sections] 1170.1[, subdivisions] (a) through (d), and 667.5[, subdivisions] (b) through (i), for total commitment of five years.”   The abstract of judgment and sentencing minute order indicate the court imposed an eight-year sentence on count 1. We are unable to reconcile the trial court's statement of a five-year term on count 1 with its reasoning, nor does the eight-year term in the minute order coincide with the oral pronouncement of judgment.   We concur with the parties that the case must be remanded for clarification of the sentence on count 1 and preparation of a minute order and abstract of judgment corresponding to the sentence imposed.⁴

B. Use of a Deadly Weapon in Count 1 Under Section 12022, subdivision (b)(1)

The jury returned a finding that defendant used a deadly or dangerous weapon, a knife, in count 1. The parties agree the enhancement under section 12022, subdivision (b)(1), is inapplicable where, as here, the use of a deadly weapon is an element of the charged offense.  (People v. Summersville (1995) 34 Cal.App.4th 1062, 1070.)   Upon remand to the trial court, the finding under section 12202, subdivision (b)(1), shall be stricken.  (People v. McGee (1993) 15 Cal.App.4th 107, 110.)

C. Articulation of the Sentence in Count 2

The amended information alleged defendant had suffered two prior convictions under the three strikes law (§§ 1170.12, subds.(a)-(d), 667, subds. (b)-(i)), two serious or violent felony convictions (§ 667, subd. (a)), and had served four prior prison terms (§ 667.5, subd. (b)).  The trial court found each of the recidivist allegations to be true, but dismissed one of the prior convictions under the three strikes law (§ 1385).

In what had been renumbered count 2, which the trial court and court clerk refer to as count 3, the court imposed the following sentence:  “Low term, the midterm double for two years, aggregate period of ten.   Plus, since I've already struck one of the [section] 667.5 priors under [section] 1170.12 [, subdivisions] (a) through (d), imposing five consecutive for total period of 15 years.”   We are unable to discern the sentence imposed on count 2 from the trial court's oral pronouncement of judgment, and remand the matter for clarification of the sentence in count 2.

Moreover, the abstract of judgment as to count 2 (again referred to as count 3) indicates a midterm consecutive sentence of two years.   The sentencing minute order indicates the count 2 sentence was seven years in state prison, with the notation that the “court selects one-third the midterm of six years which is two years,” with an additional enhancement of “five years pursuant to section 667.5.”   A minute order and amended abstract of judgment accurately reflecting the oral pronouncement of judgment on count two shall be prepared by the clerk of the court.

D. Prior Convictions Under Section 667, subdivision (a)

Once the trial court found defendant had suffered two prior convictions under section 667, subdivision (a), imposition of those enhancements was mandatory, even if one conviction had been stricken for purposes of the three strikes law.  (People v. Askey (1996) 49 Cal.App.4th 381, 389 [trial court lacks discretion to stay or strike a five-year prior conviction under § 667, subd. (a) ].) The oral pronouncement of judgment on count 2 makes no reference to the two section 667, subdivision (a) prior convictions.   The minute order is similarly silent on the subject.

Upon remand, the trial court shall impose five-year enhancements on count 2 for each of the section 667, subdivision (a) prior convictions.   The minute order of the sentencing hearing and abstract of judgment shall reflect the imposition of these enhancements.

F. Section 667.5, subdivision (b) Prior Prison Term Findings

As to the prior prison term findings, the trial court mentioned three case numbers and stated “one year imposed and one year is imposed and stayed as to each for a total period of confinement for 15 years.”   However, the abstract of judgment and minute order both reflect that defendant received five years under section 667.5.

The issue of the prior prison term enhancements must be remanded to the trial court for clarification of its intended sentence on those findings.   We point out that it is impermissible to stay a prior prison term enhancement.  (See People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521 [order staying imposition of a prior prison term enhancement is an unauthorized sentence subject to correction].)   Upon remand, the trial court shall impose or strike the prior prison term enhancements.   If the court elects to strike a prior prison term finding, it must articulate reasons in furtherance of justice for the decision, and the clerk must state those reasons in the minute order. (§ 1385.)   Incorporating the court's oral statements by reference to the reporter's transcript, as was done in this case, is insufficient to comply with section 1385.

DISPOSITION

The cause is remanded to the trial court for resentencing.   The clerk of the superior court is directed to correct the judgment to reflect 518 days of actual custody and 258 days of local conduct credit for a total of 776 days of presentence custody credit.   The clerk of the superior court is ordered to prepare and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.   In all other respects, the judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless noted otherwise..  FN1. All further statutory references are to the Penal Code unless noted otherwise.

FN2. People v. Superior Court (Romero) (1996) 13 Cal.4th 497..  FN2. People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

FN3. Dhillion was examined by counsel outside the jury's presence.   His testimony was videotaped and presented to the jury in that form because the witness was scheduled to be out of the country during the trial..  FN3. Dhillion was examined by counsel outside the jury's presence.   His testimony was videotaped and presented to the jury in that form because the witness was scheduled to be out of the country during the trial.

FN4. The trial court should review the amended abstract of judgment to “ensure that the abstract of judgment is correct.”  (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2.).  FN4. The trial court should review the amended abstract of judgment to “ensure that the abstract of judgment is correct.”  (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2.)