Opinion
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158 Cal.App.4th 267b __ Cal.Rptr.3d__ THE PEOPLE, Plaintiff and Respondent, v. JUAN JUNIOR FLORES, Defendant and Appellant. G037695 California Court of Appeal, Fourth District, Third Division December 26, 2007Super. Ct. No. 05NF4914
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
THE COURT
RYLAARSDAM, ACTING P. J.
The opinion filed on November 27, 2007 (157 Cal.App.4th 216; 68 Cal.Rptr.3d 472), is modified in the following particulars:
1. On page 7 [157 Cal.App.4th 223, advance report, 2d full par., line 6], in the third full paragraph delete the last sentence that starts with “In light of the evidence and the defense . . . .”
2. On page 7 [157 Cal.App.4th 223, advance report, after the 2d full par.], after the third full paragraph, insert the following:
In his petition for rehearing, defendant, for the first time, cites People v. McNeill (1980) 112 Cal.App.3d 330 [169 Cal.Rptr. 313]. In McNeill, the prosecution charged the defendant with one count each of murder and assault with a deadly weapon for shooting one person and firing several shots towards the murder victim’s four companions. The information named all four companions as assault victims. The trial court told the jury that it could convict the defendant of assault “‘if you find . . . [he] committed these acts on only one of the named individuals,’” but did not instruct it “must unanimously agree as to a single individual among those alleged . . . as victims upon whom an assault was committed. [Citation.]” (Id. at p. 335.)
The Court of Appeal reversed the assault conviction. Noting “[a]ssaults upon separate victims, even though perpetrated by a single individual during an indivisible course of conduct, . . . comprise . . . separate, punishable offense[s],” it found “[t]he accusatory pleading was . . . defective . . . .” (People v. McNeill, supra, 112 Cal.App.3d at p. 334.) While the failure to demur waived the information’s “formal insufficiency,” “[t]his particular pleading blunder . . . create[d] complicated instructional problems” (id. at p. 335), which the trial court’s special instruction failed to resolve. Thus, the appellate court concluded “[t]he possibility that the jurors may have come to different conclusions as to the identity of the assault victim vitiates the
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constitutionally required as[s]urance of juror unanimity as to the assault conviction.” (Id. at pp. 335-336.)
McNeill is in apposite because it involved a defectively pled assault charge, and did not consider the applicability of the continuous course of conduct exception. Here, the prosecution charged defendant with felony assault on a single fictitiously-named person for repeatedly firing a weapon in a pattern suggesting he was aiming at a moving target. In light of this evidence and the defense presented on the assault charge, the trial court had no obligation to give a unanimity instruction in this case.
This modification does not change the judgment.
The petition for rehearing is DENIED.
WE CONCUR: BEDSWORTH, J., FYBEL, J.