Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Nos. RIF97444 & RIF115605, W. Charles Morgan, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Meagan J. Beale, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
I. INTRODUCTION
Defendant John Howard III appeals from his conviction of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) — counts 11 and 16); three counts of making criminal threats (§ 422 — counts 7, 8, and 15); corporal injury to a spouse (§ 273.5 (a) — count 12); false imprisonment (§ 236 — count 13); two counts of brandishing a weapon (§ 417, subd. (a)(2) — counts 9 and 10); assault with a firearm (§ 245, subd. (a)(2) — count 14); being a convicted felon in possession of a firearm (§ 12021.6, subd. (a)(1) — count 17); possessing a firearm while on probation (§ 12021, subd. (d) — count 18); and illegal possession of ammunition (§ 12316, subd. (b)(1) — count 19); along with true findings on associated enhancements.
All further statutory references are to the Penal Code unless otherwise specified.
Defendant contends (1) the evidence was insufficient to support five of the counts; (2) the trial court erred in failing to instruct the jury on lesser offenses; (3) the jury instruction on reasonable doubt was constitutionally deficient; (4) the trial court presented the appearance of bias; (5) defendant’s sentence for count 14 should be stayed under Penal Code section 654; and (6) he should be resentenced to concurrent terms because the trial court imposed consecutive terms based on facts not found by the jury. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
A. Counts 1 Through 6
Defendant was found not guilty on counts 1 through 6, and this statement of facts therefore does not set forth a detailed account of the evidence relating solely to those counts. In brief, evidence was introduced that Chenon Howard (Chenon) had a child with defendant. On August 29, 2003, defendant and Chenon had an argument over Courtney Arnett (Arnett), Chenon’s romantic rival. After the argument, Chenon drove her car toward defendant, and defendant ended up on the hood of the car. Chenon accelerated and swerved until defendant fell off. Chenon called the police, and the responding officer saw bruises on her. Chenon told the officer defendant had dragged her upstairs in her house, had put a plastic bag over her head, and had thrown her around the room. Chenon later recanted her story, and at trial she denied the abuse; she claimed she had had bruises from a fight she had been in the night before.
B. Counts 7 Through 10
Counts 7 and 8 alleged criminal threats (§ 422) against Arnett and Barbara Nelson (Nelson) on June 5, 2005. Counts 9 and 10 alleged misdemeanor brandishing a weapon (§ 417, subd. (a)(2)) against the same victims on the same date.
Arnett, the mother of two of defendant’s children, testified that in June 2005, she and defendant had a “shaky” relationship. On June 5, they had broken up. On that day, Arnett’s friend, Nelson, visited Arnett. Arnett testified that when Nelson was leaving, defendant appeared from the side of the house holding something like a small handgun in his hand. Arnett ran to the front door to let Nelson know defendant was outside, and Arnett called 911. Arnett encountered defendant in the driveway. Defendant put up his hand as if holding a gun and said, “Yeah, bitch. I got you now.” The object in defendant’s hand was chrome and black and looked like a gun; defendant held the object as if it were a gun about six inches from Arnett. Arnett believed the object was a gun, and she thought she was going to be killed. Defendant ran off to his car, and Arnett got into Nelson’s car, still talking to 911. Defendant drove slowly past Nelson’s car, and as he passed, he pointed the gun at the two women. Arnett testified he had said something, but she did not remember what he had said. On cross-examination, Arnett testified that she had not seen a gun in defendant’s hand, and it “was what he said that made me think he had a gun in his hand.” She conceded he could have been holding a cologne bottle.
Nelson testified that when she was leaving Arnett’s house, defendant walked from the side of the house toward Nelson and Arnett, holding a silver and black object that looked like a weapon in his hand. He was not directly pointing the object, but was just holding it in her direction. Nelson believed the object was a gun “because he got so close to [her] with it.” Nelson was frightened and did not feel safe; Arnett was screaming and crying. Defendant then drove off. Nelson told the responding officer defendant had had a gun. On cross-examination, Nelson testified the object defendant had been holding did not look like a cologne bottle.
Deputy Shawn Bias, who responded to the 911 call, testified that Arnett appeared to be frantic, scared, and excited.
C. Counts 11 Through 19
Counts 11 through 19 were all alleged to have taken place on July 6, 2005. Count 11 alleged assault with a deadly weapon, a plastic bag (§ 245, subd. (a)(1)), against Arnett. Count 12 alleged corporal injury to Arnett, the mother of defendant’s children. (§ 273.5, subd. (a).) Count 13 alleged false imprisonment of Arnett by use of violence, menace, fraud, or deceit. (§ 236.) Count 14 alleged assault of Arnett with a firearm. (§ 245, subd. (a)(2).) Count 15 alleged making a criminal threat against Arnett (§ 422) with the special allegation that defendant personally used a firearm during the commission of that crime. (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8).) Count 16 alleged assault with a knife. (§ 245, subd. (a)(1).) Count 17 alleged being a convicted felon in possession of a firearm. (§ 12021, subd. (a)(1).) Count 18 alleged possession of a firearm while on probation. (§ 12021, subd. (d).) Count 19 alleged unlawful possession of ammunition. (§ 12316, subd. (b)(1).)
In June and July 2005, defendant spent two or three nights a week at a house Chenon owned on Lambourn Court in Moreno Valley (the Lambourn house). The house was on the market, and Chenon was living elsewhere. Defendant had keys to the house, and he kept personal belongings there.
In the evening of July 6, 2005, Arnett went to the Lambourn house, and she and defendant began arguing. In the downstairs hall, defendant held Arnett down and began choking her. He placed a plastic bag over her head, starting to suffocate her; she thought she was going to die.
Defendant removed the plastic bag and carried her upstairs. He dropped her on the floor and began punching her in face. Arnett tried to escape, but defendant forced her onto the bed and punched her 20 to 30 times in the ribs and stomach and bit her on the buttock. He then placed a plastic dry cleaner’s bag over her head and began suffocating her. She lost consciousness three or four times that night.
Defendant’s gun, an automatic like a nine-millimeter, was at the top of the stairwell. Defendant grabbed the gun and forced it into her mouth, knocking out a tooth. He stated, “I’m gonna [sic] kill you, bitch, but not right now.” Arnett believed defendant was going to kill her.
Defendant forced Arnett to take a shower; while she was doing so, he punched her in the back of the head, causing her to fall. He hit her in the head with a bar of soap and put a knife to her throat, saying, “You gonna die.” Arnett got out of the shower and went to sleep on the floor. Defendant woke her up by splashing water on her face or putting dish soap in her mouth.
The next morning, Arnett escaped by running out the front door. Defendant chased her, but she flagged down a driver who took her to a grocery store, where she called the police.
The driver who picked her up testified she appeared “beat up.” Her eyes, arms, and legs were bruised, and a bone appeared to be popping out of her ribcage. She was scared and crying, and she said her boyfriend had locked her in the house for a couple of days, put a gun in her mouth, and kicked and punched her. At first, Arnett did not want to call the police, but she then decided to do so, and the driver took her to a payphone where she placed the call. An audiotape of her 911 call was played for the jury.
Arnett was transported to the hospital. Photographs of Arnett with a cut lip, bruises around the eye, scratches on the back of her neck, bruises and scratches on her arms, hand, legs, and back, and a bite mark on her hip were introduced into evidence.
Deputy Sheriff Lionel Murphy spoke to Arnett in the hospital. She was in pain and crying. She described the assault to Deputy Murphy in substantially the same fashion as her trial testimony. At the Lambourn house, Deputy Murphy collected evidence, including dry cleaner bags, a pocketknife in the pocket of a bathrobe, a box of ammunition, and mail addressed to defendant at the Lambourn house. Chenon acknowledged she owned a .38-caliber handgun and ammunition; she had taken the handgun to her new residence, but she had left some of the ammunition at the Lambourn house.
Ashley Coleman, Arnett’s friend, testified she had dropped Arnett off at the Lambourn house on July 6. Arnett had not then had any bruising on her face, arms, or legs.
Arnett’s testimony was impeached with 1998 convictions for possessing marijuana for sale and intimidating a witness from testifying and a 1996 conviction for resisting a police officer. In addition, she had a pending serious felony in San Bernardino. Arnett acknowledged she and defendant had engaged in a great deal of mutual violence and admitted she had hit him several times. She had also gotten into fights with other women over defendant, but she denied fighting with Donna Figueroa on July 5, 2005. Arnett denied writing any letters to defendant when he was in jail.
It was stipulated that defendant was convicted of felony violation of section 459 in January 2002, and the court had ordered that defendant not own, possess, or have under his control or immediate access any firearm, deadly weapon, or weapon-related paraphernalia; that order was in effect during July 2005. In June and July 2005, defendant was released from custody prior to the judgment becoming final on his felony offense.
D. Prior Uncharged Offenses
In April 2005, defendant had an altercation with Arnett that resulted in defendant’s pulling out staples from Arnett’s then recent caesarian section incision.
Lynn Stephens, a former girlfriend of defendant and the mother of one of his children, testified defendant had struck her in 1994, 1997, and 1998, including once shortly after she had given birth. She had fought with other women over defendant, and she had struck defendant as well.
E. Defense Evidence
Defendant’s mother, Dorothy Mae Howard, testified Arnett had told her Arnett was getting assistance from the district attorney’s office. Arnett had told Dorothy that Arnett had lied about being beaten and had said she would tell the truth if Dorothy bailed her out of jail.
Donna Figueroa, who had known defendant for 16 years, testified she and Arnett had fought on July 5, 2005. Figueroa had punched, scratched, and bitten Arnett. Arnett had threatened several times to kill Figueroa because of Figueroa’s friendship with defendant.
Defendant testified in his own behalf. He testified that during their relationship, Arnett had slapped him, threatened to kill him, hit him with heavy objects, cut him, and tried to hit him with a car. Defendant stated he had never owned a gun, had never pointed a gun at Arnett and Nelson, and had not had a gun on June 5, 2005. Defendant said that on June 5, he had taken food and groceries to Arnett at her request and had showed her a bottle of cologne when Arnett was sitting in Nelson’s car. Arnett had threatened that unless defendant gave her money, she would call the police and say defendant had threatened her. Defendant had obtained a restraining order against Arnett in November 2004.
Defendant admitted he had seen Arnett on July 3 and had obtained Chenon’s permission for Arnett to stay at the Lambourn house so long as defendant did not stay there with her. When Arnett showed up at the Lambourn house on the night of July 6, she already had a swollen lip, bruises, and scratches. She told him she had been in a fight. Arnett had said she did not want to live anymore and had tried to cut her wrists with a knife that was in the pocket of the robe she was wearing. Defendant had tried to call 911, but Arnett pulled the telephone jack out of the wall. Defendant testified he had left the house at about 11:00 p.m., and he denied injuring Arnett. Defendant denied knowing anything about the ammunition in the house. He denied that he had used the bed in the Lambourn house on which the ammunition had been found, although he admitted that his mail had been on the bed.
Defendant produced two letters which he testified Arnett had written him while he was in custody.
Defendant denied having ever hit Stephens, Chenon, or Arnett.
F. Rebuttal Evidence
A document examiner testified that in her opinion, the handwriting in the two letters Arnett had purportedly written to defendant while defendant was in custody was not consistent with exemplars of Arnett’s handwriting. A handwriting exemplar taken from defendant in court appeared to be distorted and not written naturally; defendant had taken about 35 minutes to write two pages. The document examiner was not able to reach a conclusion as to whether the letters were consistent with defendant’s exemplar. However, the handwriting on the letters was consistent with documents in defendant’s cell signed with defendant’s name, and the document examiner formed the opinion that the letters had been written by the same person who had written the documents found in defendant’s cell.
G. Jury Verdicts and Sentence
The jury found defendant guilty on counts 7 through 19. The jury found true the special allegations that defendant had committed the offenses charged in counts 7, 8, and 11 through 19 while released from custody pending trial on a felony offense. (§ 12022.1.) The jury also found true the special allegation that defendant had personally used a handgun when committing count 15. (§§ 12022.5, subd. (a), 1192.7, subd. (c).)
The trial court sentenced defendant to a total of 11 years in prison. The trial court deemed count 15 to be the principal count and imposed the middle term of two years for that count, plus consecutive terms of two years for the section 12022.1 enhancement, and four years for the section 12022.5, subdivision (a)(1) enhancement as to that count. The trial court imposed consecutive terms of one year (one-third the middle term) for each of counts 11, 14, and 16. The trial court imposed concurrent terms for counts 7, 8, 13, and 19, and imposed and stayed sentence on counts 12, 17, and 18 under section 654.
III. DISCUSSION
A. Sufficiency of the Evidence
Defendant contends the evidence was insufficient to support his conviction of counts 7, 8, 9, 10, or 19.
1. Standard of Review
When a criminal defendant challenges the sufficiency of the evidence to support his conviction, this court “review[s] the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume the existence of every fact the trier of fact could reasonably deduce from the evidence that supports the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. (Ibid.) ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”’ [Citation.]” (Id. at pp. 1053-1054.)
2. Counts 7 and 8
Counts 7 and 8 involved criminal threats against Nelson and Arnett on June 5, 2005. (§ 422.) Defendant argues the evidence was insufficient to establish that (1) the threats were unequivocal, unconditional, immediate, (2) that defendant had a gun, or (3) that either woman was in sustained fear for her own safety.
a. Elements of criminal threat
Counts 7 and 8 alleged defendant had made criminal threats in violation of section 422. The elements of a violation of section 422 are that (1) the defendant threatened to commit a crime that would result in death or great bodily injury; (2) the defendant had the specific intent that his statement would be taken as a threat, even if he did not actually intend that the threat be carried out; (3) the threat was so unequivocal, unconditional, immediate, and specific that it conveyed to the victim “a gravity of purpose and an immediate prospect of execution of the threat”; (4) the threat actually caused the victim to be in sustained fear for his or her safety or for the safety of his or her family; and (5) the victim’s fear was reasonable. (People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Mere angry utterances or rants, however, violent, do not violate section 422. (People v. Teal (1998) 61 Cal.App.4th 277, 281.)
b. Sufficiency of evidence that threats were unequivocal, unconditional, and immediate
Defendant argues the evidence was insufficient to establish that the threats had been unequivocal, unconditional, and immediate, as required to establish a violation of section 422, because the evidence was insufficient to establish that defendant had a gun.
In People v. Jacobs (1987) 193 Cal.App.3d 375, 382 (Fourth Dist., Div. Two), this court held that sufficient evidence supported the jury’s finding that the defendant possessed a weapon during a robbery when the defendant told the victim he had a gun, the victim heard the sound of a gun being cocked, and a gun was later discovered in the defendant’s car, even though the victim did not actually see the gun. The court noted that it would be an “[a]bsurd result[]” to hold that a gun use allegation could never be found true “where the victim was unable to actually see the gun because of visual impairment or the aiming of a weapon concealed in the suspect’s clothing.” (Id. at p. 382, fn. 3.) In People v. Green (1985) 166 Cal.App.3d 514, 517, the court upheld a firearm use enhancement when the robbery victim did not see the gun but felt it placed against her head, and bullets were later found in the defendant’s pocket. Similarly, in People v. Dominguez (1995) 38 Cal.App.4th 410, 422, the court upheld a jury finding of firearm use when the defendant threatened to kill the victim, and the victim felt a cold steel cylindrical object at the back of his neck. However, the defendant’s mere threat to use a weapon when the existence of the weapon is never proved is not substantial evidence that the defendant was armed. (People v. Tribble (1971) 4 Cal.3d 826, 834.)
Here, Arnett and Nelson both testified that defendant pointed a gun at them. Nelson testified defendant stated, in effect, “I’ll kill you.” However, Arnett also testified that she had never seen a gun in defendant’s hand. Although she acknowledged that defendant might have been holding a cologne bottle, she had thought it had been a gun because of the way he held it. Nelson testified she had thought defendant had a gun because of the way he had held the object, although she conceded she had not seen specific parts of the gun, such as the trigger or clip. Defendant argues it was not reasonable for the jury to conclude from the witnesses’ testimony that defendant in fact had a gun, because the witnesses’ testimony had been merely speculation.
On review, our role is not to substitute our own decision for that of the jury, but rather to determine if the evidence supported the logical inferences drawn by the jury. (People v. Maury (2003) 30 Cal.4th 342, 403; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Evidence in the record showed that defendant held a chrome or silver and black object in the manner one would hold a gun, pointed the object toward Nelson and Arnett, and stated, “I’ll kill you.” A rational jury could infer from such evidence that defendant did in fact have a gun when he threatened Arnett and Nelson. (See People v. Rodriguez, supra, at p. 13 [“[a] defendant’s own words and conduct in the course of an offense may support a rational fact finder’s determination that he used a loaded weapon”].)
c. Sufficiency of evidence of sustained fear
Defendant next argues the evidence was insufficient to establish that the two women had been in sustained fear as required to establish a violation of section 422.
In People v. Allen (1995) 33 Cal.App.4th 1149, the court held that “sustained,” for purposes of the term “sustained fear” in section 422, means “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen, supra, at p. 1156.) The court held that 15 minutes between the communication of a threat and the defendant’s arrest was “more than sufficient” to establish sustained fear. (Ibid.)
Here, the jury could reasonably find the women’s actions were consistent with their being in sustained fear. The women warned each other and jumped into Nelson’s car, and Arnett immediately called 911. Both women testified they had been scared; Arnett testified she had thought she was about to die. Moreover, the evidence showed that the fear was not merely momentary and fleeting. Nelson testified she felt safe once she returned to her home. Deputy Bias, who responded to Arnett’s 911 call, stated that when he arrived, Arnett was frantic, scared, and excited. We conclude sufficient evidence supports the jury’s implied finding of sustained fear.
3. Counts 9 and 10
Counts 9 and 10 involved brandishing a weapon at Nelson and Arnett on June 5, 2005. Defendant argues the evidence was insufficient to establish that he possessed a gun or that he brandished a gun in a rude, threatening, or angry manner towards Nelson.
a. Elements of brandishing a firearm
Section 417, subdivision (a)(2), makes it a crime for any person, except in self-defense, to “in the presence of any other person, draw[] or exhibit[] any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or [to] in any manner, unlawfully use[] a firearm in any fight or quarrel . . . .”
b. Sufficiency of evidence defendant had a gun
Defendant argues the evidence was insufficient to establish that he had a gun. As discussed above, we reject that contention.
c. Sufficiency of evidence of brandishing
Defendant also argues the evidence was insufficient to establish that he exhibited a gun in a rude, angry, or threatening manner.
Nelson testified directly that defendant threatened her with a gun. Although defendant did not point it at her directly, he gripped it in such a way that it was clear to Nelson he was holding a gun when he said he would kill her. Arnett similarly testified defendant held the weapon in a threatening manner. This evidence amply supported the jury’s finding that defendant exhibited the gun in a rude, angry, or threatening manner.
4. Count 19
Count 19 involved unlawful possession of ammunition under section 12316, subdivision (b)(1). Defendant contends the evidence was insufficient to establish that he knowingly possessed ammunition or knowingly had ammunition under his custody or control.
a. Background
In a search of the Lambourn house, Deputy Lionel Murphy located a box of live rounds of .38-Special ammunition on the bed in the master bedroom. Deputy Murphy also found mail on the same bed; some of the mail was addressed to defendant at the Lambourn house. Chenon acknowledged that she owned a .38-caliber pistol and ammunition, and she had left some of the ammunition at the Lambourn house.
Chenon testified that in June and July 2005, defendant had been living with his mother, but he had a key to the Lambourn house and spent two or three days a week there. Defendant testified he stored all his landscaping business equipment and his clothing at the Lambourn house, and he spent a lot of time there, but his residence was in Riverside. He denied that he used the bed in the master bedroom where the ammunition was found, but he acknowledged that his mail had been found on that same bed.
b. Analysis
The elements of a violation of section 12316, subdivision (b)(1) are that (1) defendant possessed ammunition or had ammunition under his custody or control; (2) he knew he possessed ammunition or had it under his custody or control; and (3) he had previously been convicted of a felony. Defendant stipulated that he had a previous felony conviction; thus, the third element of the offense was not in dispute.
Possession may be either actual or constructive. Possession is actual when the person has direct physical control of the property; possession is constructive when the person does not have immediate physical control of the property, but has the right to control the property, either directly or through another person. (People v. Frazer (2003) 106 Cal.App.4th 1105, 1111-1112.) Here, the prosecution’s theory was that defendant had constructive possession of the ammunition.
Although Chenon owned the Lambourn house, she was not living there. Defendant had keys to the house and spent two or three nights a week there in June and July 2005, and he kept personal property there. Mail addressed to defendant at the Lambourn house was found on the bed in the master bedroom along with the ammunition. Based on this evidence, a reasonable jury could find that defendant constructively possessed that ammunition.
B. Lesser Included Offenses
Defendant contends the trial court erred in failing to instruct the jury on attempted criminal threat as a lesser included offense to the charge of criminal threat in counts 7 and 8.
1. Duty to Instruct on Lesser Included Offenses
The trial court must instruct the jury sua sponte on the general principles of law relevant to the issues raised by the evidence. Those general principles include the principles closely and openly connected with the facts before the court and which are necessary for the jury’s understanding of the case. The trial court must instruct sua sponte on lesser included offenses if there is substantial evidence that would absolve the defendant of the greater offense, but which would support a finding of guilt on a lesser included offense. (People v. Manriquez (2005) 37 Cal.4th 547, 584.)
2. Attempted Criminal Threat
A defendant may be found guilty of attempted criminal threat if he or she takes all steps necessary to complete the crime, but some intervening fortuity prevents completion of the crime. (People v. Toledo, supra, at pp. 230-231.) Such a fortuity might include the interception of a written threat, the victim’s misunderstanding of the threat, or the victim’s failure to become fearful as a result of the threat. (Id. at p. 231.) In Toledo, the court held the defendant was properly convicted of attempted criminal threat when the evidence showed the victim did not become fearful as a result of the threat. The court held that defendant’s threat, “‘You know, death is going to become you tonight. I am going to kill you,’ was made with the requisite intent and was the type of threat that . . . reasonably could have caused [the victim] to be in sustained fear for her own safety.” (Id. at p. 235.) However, after the threat, the victim tried to return to the apartment she shared with the defendant, and she testified at trial she had not entertained any fear of the defendant; thus, the court held that the crime of attempted threat had been established.
Here, in contrast, both Nelson and Arnett testified they had been scared after defendant made his threat. Nelson testified she felt safe once she got home. Deputy Bias testified Arnett appeared scared when he arrived in response to her 911 call. The evidence established all the elements of a completed threat, and there was no basis on which the jury could reasonably have found that some intervening fortuity had prevented completion of the crime. (People v. Toledo, supra, 26 Cal.4th at p. 231.)
C. Unanimity Instruction
Defendant contends the trial court erred in failing to instruct that it had to unanimously agree as to which threat constituted the criminal threat to Arnett in count 7 and which act constituted brandishing a weapon in count 9.
Arnett encountered defendant in the driveway of her house on June 5, and holding a gun, defendant said, “Yeah, bitch. I got you now.” Arnett jumped into Nelson’s car. Defendant then drove his car up to Nelson’s and again holding the gun, threatened to kill Nelson and Arnett. Defendant argues the evidence thus showed two separate threats to Arnett and two separate instances of brandishing a weapon at her.
When a defendant is charged with a single criminal count, but the evidence reveals more than one criminal act, either the prosecution must select the act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt the defendant committed the same specific criminal act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) A unanimity instruction is not required, however, when the criminal acts are so closely connected as to form a single transaction, when the offense itself consists of a continuous course of conduct, or when the acts were so substantially identical that any juror believing one act took place would necessarily believe all the acts took place. (People v. Wolfe (2003) 114 Cal.App.4th 177, 184.)
Here, defendant’s conduct was continuous, and there was no reasonable likelihood of juror disagreement as to particular acts. Rather, the only question was whether defendant in fact committed all the acts. (People v. Jones (1990) 51 Cal.3d 294, 321-322.) The case was therefore a credibility contest — the jury had to either believe defendant or believe Arnett and Nelson. Under the circumstances, an instruction on unanimity was not required.
D. Instruction on Reasonable Doubt
Defendant contends the jury instruction on reasonable doubt was constitutionally deficient. Specifically, he argues the instruction failed to inform the jury that lack of evidence is included in the basic definition of reasonable doubt.
1. Background
The trial court’s instruction to the jury on reasonable doubt based, on Judicial Council of California Criminal Jury Instructions, CALCRIM No. 220, included the following language: “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[] guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty.”
The trial court also instructed the jury with CALCRIM No. 222 on the definition of evidence and with CALCRIM No. 103 on the People’s burden of proof beyond a reasonable doubt.
2. Standard of Review
We apply a de novo standard of review in assessing whether jury instructions correctly state the law. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled on another point by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
3. Analysis
In a number of recent published cases, courts have addressed challenges to CALCRIM No. 220 similar to those defendant now raises, and those courts have uniformly upheld the constitutionality of the instruction. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093; People v. Anderson (2007) 152 Cal.App.4th 919, 944; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1508-1510; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157.) Although defendant argues unpersuasively those cases were wrongly decided, we agree with the analysis and conclusion of those cases, and we reject defendant’s challenge to CALCRIM No. 220.
E. Appearance of Bias
Defendant contends the trial court deprived him of his constitutional rights to due process and a fair trial by presenting the appearance of bias. Defendant argues that although the trial court consistently interrupted witnesses and admonished them to limit their responses to what was called for by the questions, defendant “was the only witness that was scolded in front of the jury and threatened with the striking of his testimony.”
1. Background
Before each non-law enforcement witness testified, the trial court admonished the witness to respond only to the question asked and not to volunteer information when asked a question that could be answered “yes” or “no.” Throughout the trial, the trial court frequently cut off witnesses’ responses that went beyond the call of the question.
Defendant testified in his own behalf. When he took the stand, he affirmed that he had heard the trial court “admonish civilian witnesses how to field questions.” The trial court asked defendant to “[k]eep those principles in mind as you answer questions . . . .”
During defendant’s testimony, the trial court stopped defendant’s testimony more than 30 times to prevent him from interjecting unresponsive information, remind him to answer questions with “yes,” “no,” or that he did not know, or remind him to confine his response to the direct question asked. Likewise, defense counsel and the prosecutor repeatedly reminded defendant to answer questions with a simple “yes” or “no.”
One exchange was as follows:
“Q. Did [Arnett’s mother] come over?
“A. No. She told me not to call her with [Arnett’s] mess; that she was on drugs. ‘And I don’t want to have nothing to do with her.’
“THE COURT: Did she come over?
“[Defendant]: No, she didn’t.
“THE COURT: What’s the rest of that? Just answer the question as directed. Please. If you can’t follow my instructions, I’m not going to let you testify any more.
“[Defense counsel]: Please listen to the question, Mr. Howard, and answer just the question.”
Eventually, almost at the close of defendant’s testimony, when defendant again expanded on an answer to a question that called for a “yes” or “no” response, the trial court admonished defendant as follows, “Wait a second. [¶] Mr. Howard, you think for some reason the rules don’t apply to you in this courtroom. And I don’t know why that is. Every civilian that’s gotten on that witness stand, I’ve admonished them, and I’ve gotten on them when they haven’t. But you consistently ignore my rules. And if you keep doing this, we’re going to stop this. And I’m going to strike all your testimony. Do you understand that?
“[Defendant]: Yeah. I apologize. I was just telling about the letter
“THE COURT: No. Absolutely no.
“[Defendant]: All right.
“THE COURT: You just follow the rules like everybody else. I’m tired of it. [¶] New question.”
2. Analysis
Trial courts have a general duty to control trial proceedings and maintain order and decorum in the courtroom. (See People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) Specifically, section 1044 provides, “It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence . . . to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.” The trial court has broad discretionary power to control the proceedings in the courtroom; however, in exercising its discretion, the trial court must be impartial and must assure that the defendant is afforded a fair trial. (People v. Cline (1998) 60 Cal.App.4th 1327, 1334.)
Our review of the record shows that the trial court exercised its discretion in an evenhanded manner — the trial court consistently admonished witnesses not to volunteer information in response to questions. The fact that the trial court admonished defendant more frequently than other witnesses was merely a product of defendant’s own conduct — despite repeated admonishments, defendant persisted in expanding upon his answers, and the number of instances in which defendant did so was far greater than for any other witness.
Defendant also contends the trial court’s statements that it would strike his testimony or not let him testify further if he continued to volunteer information demonstrated bias, because no other witness was similarly admonished. However, no other witness persisted in the practice to anywhere near the same degree as defendant. Moreover, striking the testimony of a witness or curtailing the witness’s testimony would not likely have had any deterrent effect on or serious consequence to the witness, but would rather have punished the party that called the witness, but which had no control over the witness’s conduct. Thus, the lack of parallel treatment reflected the fact that defendant’s role as a witness in his own trial was inherently different from the roles of other witnesses. And the trial court’s statement that it would strike defendant’s testimony was made only after defendant had been admonished by the trial court, the prosecutor, and his own counsel dozens of times. In our view, rather than demonstrating bias, the trial court exhibited remarkable patience and restraint in the face of defendant’s persistent and continuing disregard of those admonitions.
Thus, we perceive no abuse of discretion in the trial court’s actions or statements, and we conclude the trial court’s effort to maintain control of the proceedings did not constitute misconduct.
F. Section 654
Defendant contends his sentence for count 14 (assault with a firearm on Arnett) should be stayed under section 654 because it involved the same acts as count 15 (making a criminal threat against Arnett with personal use of a firearm).
1. Background
Counts 14 and 15 were based on defendant’s conduct on the night of July 6, 2005. Defendant carried Arnett upstairs at the Lambourn house where he jammed the barrel of a gun deep into her mouth, knocking out a tooth. He said, “I’m gonna [sic] kill you, bitch, but not right now.” Defendant put another plastic bag over Arnett’s face and held it in place over her nose and mouth with his hand. Arnett lost consciousness several times during the night.
At the sentencing hearing, the prosecutor argued that counts 14 and 15 were part of an indivisible transaction. However, the trial court disagreed, found the assault with a firearm to be an act separate from the criminal threat while personally using a firearm, and sentenced defendant to two years for count 15 and to a consecutive term of one year for count 14.
2. Standard of Review
Whether multiple convictions are part of an indivisible transaction is a question of fact for the trial court, and we apply the substantial evidence standard of review to the trial court’s determination that multiple convictions were part of an indivisible transaction. (People v. Martin (2005) 133 Cal.App.4th 776, 781.)
3. Analysis
Section 654 prohibits multiple punishments for a single act, even if the act violates more than one statute and therefore constitutes more than one crime. (People v. Solis (2001) 90 Cal.App.4th 1002, 1021.) Multiple punishment is proper, however, if the defendant entertained multiple independent criminal objectives. (Ibid.)
Here, substantial evidence supports the trial court’s finding that counts 14 and 15 were not part of an indivisible transaction. The assault with a firearm was complete after defendant jammed the gun into Arnett’s mouth and broke off her tooth. However, the criminal threat continued — Arnett knew defendant had the gun throughout the night while he continued to terrorize her. He told her he was not going to kill her “yet” to prolong her terror through the ordeal. Thus, we conclude section 654 did not require that defendant’s sentence for count 14 be stayed.
G. Consecutive Sentences
Defendant contends the trial court erred in imposing consecutive sentences because the jury did not find the facts on which the sentencing choice was based. In his reply brief, defendant acknowledges that the issue was determined adversely to his position in People v. Black (2007) 41 Cal.4th 799, 823, and that this court is bound to follow that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He raises the point to preserve it for federal court review. We reject defendant’s challenge to his consecutive sentence.
IV. DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., KING, J.