Opinion
F073173
11-21-2017
THE PEOPLE, Plaintiff and Respondent, v. PRANEEL NAND, Defendant and Appellant.
Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1490719)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy Ashley, Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Praneel Nand (defendant) stands convicted, following a jury trial, of child endangerment under circumstances likely to produce great bodily injury or death (Pen. Code, § 273a, subd. (a); count I), infliction of corporal injury resulting in a traumatic condition on a cohabitant (§ 273.5, subd. (a); count II), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count III), threatening to commit a crime (§ 422; count IV), false imprisonment (§ 236; counts V-VII), possession of a firearm by a felon (§ 29800, subd. (a)(1); count VIII), and possession of ammunition by a person prohibited from possessing a firearm (§ 30305, subd. (a)(1); count IX). Following a court trial, he was found to have been convicted, pursuant to section 273.5, subdivision (f), of two domestic-violence-related offenses within seven years of the current offenses. He was sentenced to an aggregate term of 10 years 4 months in prison, and ordered to pay various fees, fines, and assessments.
All statutory references are to the Penal Code.
On appeal, we hold: (1) Any error in the trial court's failure to give a unanimity instruction was harmless beyond a reasonable doubt, and (2) The trial court did not err by failing to stay the sentence imposed on count III. Accordingly, we affirm.
FACTS
At approximately 10:00 a.m. on August 9, 2015, Modesto Police Officer Jones was on patrol when he was dispatched to perform a security check at an address on East Orangeburg Avenue in Modesto. Also responding were Sergeant Steward and Officer Souza. Janet P. had called 911 and requested that police come to her house, as her ex-boyfriend, defendant, was holding her and her children hostage. Janet stated defendant was not armed, but she feared he would kill them. She related that she and her children had tried to leave early that morning, but defendant grabbed the children and choked Janet.
Unspecified dates in the statement of facts are to the year 2015.
No disrespect is intended by our use of Janet's first name.
An audio recording of the 911 call was played for the jury.
As the officers approached the house, Jones activated his body camera, which produced audio and video footage. Officers knocked multiple times and identified themselves. Although they could hear a woman crying inside, it took several minutes for defendant to answer the door.
This footage, which included the officers knocking, Janet's initial statement at the house, and her statement at the hospital, was played for the jury.
When Jones initially made contact with Janet, Janet seemed very scared, upset, and distraught. Jones could see redness to her neck and face. The children also seemed shaken up. Janet related that she and her children were trying to leave, but defendant grabbed them and choked Janet until she nearly passed out. Her children (I., who was six years old, and S., who was 10) saw everything. Janet said she felt pain in her neck and heard cracking noises in her jaw when she was being strangled.
Janet subsequently gave a more detailed statement at the house and then the hospital. She related that I.'s father had shown up unexpectedly and visited with I. on the porch. Defendant was present at the time, then went out drinking. He returned home about 3:00 a.m. I.'s father was gone by that time. Janet was asleep, but defendant got angry and started accusing Janet of cheating on him. Defendant was drunk. He was straddling her on the bed. He "[r]ear[ed] back" like he was going to hit her, but he did not. He also grabbed a shoe. He was trying to get her to stop screaming and crying. She thought he was going to hit her with the shoe, but he did not. He yelled at her for several hours.
Janet related that when defendant started to calm down somewhat, Janet told the children to go to the neighbors and call the police. She gave I. her cell phone. Janet also tried to leave, but defendant grabbed her and pushed her, and she twisted her ankle and fell to the floor. He then started choking her. Janet was about to pass out. Because she had been pulled back into the house, the children did not run. They were yelling at defendant to stop. Defendant pushed I., causing her to bump her head, and grabbed the phone from her. He let Janet go. She sat on the floor with her children and defendant calmed down. He started acting like he was afraid and asked if Janet loved him. Eventually, he went into another room. Janet grabbed an old phone and called 911, then she took the children into the garage.
Janet said that when the police arrived, I. and S. were in S.'s room. Janet was in the bathroom in the hallway. As she and the children started to walk, defendant came and stood in front of them and told them to be quiet. He would not let them pass. Eventually, defendant opened the door when he heard the police pounding.
Janet accepted Souza's offer of a temporary emergency protective order. She related that she had tried to leave defendant, but he had told her earlier that if she left him or called the police, he would come back and kill her and the children. She believed he would do that. She said that that morning, he had said if she called the police, he would come back and kill them all. She also related that defendant had a shotgun underneath her dresser in the bedroom. Jones found a .22-caliber rifle under the dresser in the room Janet said she shared with defendant. It was in a case with some .22-caliber ammunition.
Janet visited defendant in jail seven times between September 5 and October 10. Defendant telephoned Janet's phone number from jail 98 times between August and mid-November.
At trial, Janet testified that I.'s father coming over upset everyone, because he was a drug addict and "no good." When defendant came home around 3:00 a.m., everything was fine until Janet got angry at defendant because he had been drinking and she thought he was cheating on her. They argued most of the night, then Janet told defendant that either he was going to leave or she was. He did not want to leave, so she tried to go, but she could not find her keys. Eventually, they stopped arguing. Janet called the police because she was mad at defendant and wanted him out of the house. She told the 911 dispatcher that she was being held hostage, because she wanted the dispatcher to be motivated to send the police. Janet had called them in the past when her truck was stolen and during a few incidents with I.'s father, but the police had not come.
When Janet went to leave with the children, defendant started crying. He was trying to hug Janet and get her to stay. She kept pushing him away. She accidentally bumped I. At no time did defendant try to choke Janet. Their entire argument was merely verbal, not physical. Janet made the mistake of telling the officer otherwise. Although she and defendant both fell to the floor, causing Janet to hurt her ankle, this happened because Janet pushed defendant off. He did not choke her. They got back up, she told the children it was okay and hugged them, and the argument stopped. At no time did defendant physically prevent Janet from leaving the house. She rejected his attempt to hug her, because she believed he was cheating on her and she did not want him touching her.
In one of the jail telephone calls, a recording of which was played for the jury, Janet told defendant that even though defendant did what he did, she could not be without him. She also told him she honestly thought she was going to die in front of her children.
When the police arrived, Janet made things up because she wanted to get defendant out of the house. She told them defendant had a gun and where it was. In reality, she purchased the gun at a flea market. She did not tell this to the police, because she knew the gun was not registered and was unsure whether that would get her into trouble. She was unaware, prior to the preliminary hearing, that defendant was a convicted felon. Had she known, she would not have brought the gun into the house or said anything about it. Janet denied that defendant ever threatened her or the children. The injuries to her neck were either hickeys or where she scratched herself.
Five days after the incident, Janet contacted the district attorney's office to try to get things straightened out. She knew she had lied about a lot of things. In the letter she wrote to the prosecutor, however, she did not say she had lied. She also asked for a permanent restraining order, as she wished to have no further contact with defendant. Janet subsequently contacted the police department in an attempt to get the charges dropped. She wrote them that as she started to leave after confronting defendant about his cheating and arguing with him, defendant wept and apologized and tried to hug her as he begged her not to leave him. His hands were on her shoulders. When she grabbed them off of her, she scratched her own neck. Still crying, he went to hug her again. She shoved him, and that was when they fell to the floor.
DISCUSSION
I
LACK OF UNANIMITY INSTRUCTION
Defendant contends the evidence showed, and the prosecutor argued, more than one act that could have constituted assault by means of force likely to produce great bodily injury, as charged in count III. Accordingly, he says, the trial court erred by failing to instruct jurors that they must unanimously agree which act constituted the offense. We conclude any error was harmless beyond a reasonable doubt.
CALCRIM No. 3500 provides: "The defendant is charged with ___ <insert description of alleged offense> [in Count ___] [sometime during the period of ___ to ___]. [¶] 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."
"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.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Accordingly, cases have long held that "when the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed . . . that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. [Citations.]" (People v. Gordon (1985) 165 Cal.App.3d 839, 853, fns. omitted, disapproved on other grounds in People v. Frazer (1999) 21 Cal.4th 737, 765 & People v. Lopez (1998) 19 Cal.4th 282, 292; accord, People v. Russo, supra, at p. 1132.)
"The unanimity requirement is constitutionally rooted in the principle that a criminal defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. [Citations.]" (People v. Brown (1996) 42 Cal.App.4th 1493, 1499-1500.) It " '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. Russo, supra, 25 Cal.4th at p. 1132) as when, for example, the jury " 'amalgamat[es] evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.' [Citation.]" (People v. Moore (1989) 211 Cal.App.3d 1400, 1415.)
A trial court has a sua sponte duty to instruct on unanimity when the circumstances warrant and no election has been made. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) On the other hand, " '[a] unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.' [Citations.] '[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury's understanding of the case.' [Citations.]" (People v. Beardslee (1991) 53 Cal.3d 68, 93.) A trial court's failure to give a unanimity instruction is subject to our de novo review. (People v. Hernandez (2013) 217 Cal.App.4th 559, 568; see People v. Waidla (2000) 22 Cal.4th 690, 733.)
In the present case, there was evidence defendant reared back as if to strike Janet with his fist, and also with a shoe, while he was straddling her on the bed. Several hours later, he choked her almost to the point of unconsciousness. Either act could have formed the basis for count III, and the Attorney General does not contend otherwise. Instead, the Attorney General argues no unanimity instruction was required because the record shows the prosecutor did not argue either act could constitute aggravated assault, but rather "distinctly segregated the evidence of the infliction of corporal injury to a cohabitant from the evidence of the aggravated assault."
We do not agree with the Attorney General's description of the record. The prosecutor argued defendant was guilty of count II by virtue of his having strangled Janet. She then stated:
"Let's talk about Count III, assault with force likely to produce great bodily injury.
"The first element is the Defendant did an act that by its nature would directly and probably result in the application of force to a person. The second count [sic] is the force used was likely to produce great bodily injury.
"The Defendant did that act willfully, and when the Defendant acted, he was aware of facts that would lead a reasonable person to realize that his act, by its nature, would directly and probably result in the application of force to someone. When he acted, he had the present ability to apply force likely to produce great bodily injury to a person. I probably wouldn't meet this element if he didn't have any hands, because then we wouldn't have the strangulation, but he has the ability. [Janet] told the officers what he did, that he applied force that was likely to produce great bodily injury. It could have caused death, if it continued. But it didn't. All I need to prove here is that there was enough force that could have produced great bodily injury, okay. [¶] . . . [¶]
"As far as application of force, or applying force, it means to touch in a harmful or offensive manner. . . .
"And again, the slightest touching can be enough, if it's done in a rude or angry way. So, you know, he could have just done this, not applied
a lot of force, but he did it in an angry way. He was yelling at her. . . ." (Italics added.)
After discussing one of the jail calls, which the prosecutor argued showed defendant's desire to control Janet, the prosecutor continued:
"Again, with this charge, Count III, I don't have to show that the touching caused pain or injury of any kind. I'm not required to prove that he actually touched anyone, and that includes raising the fists, as if he's going to punch her, picking up the shoe, as if he's going to pound her with it. So I'm not required to prove that he actually intended to use force against Janet when he acted, okay. . . .
"In this count, no one needs to be actually injured by his act, okay. But if somebody was injured, you can take that into consideration. And the definition of great bodily injury is significant or substantial, physical injury. It's an injury that's greater than minor or moderate harm." (Italics added.)
Contrary to the Attorney General's assertion, the prosecutor did not segregate the evidence. Rather, although she emphasized defendant's act of choking Janet, she also argued his acts of raising his fists and the shoe could constitute the basis for a conviction of aggravated assault. Her argument in this respect "muddied the waters," and she did not then clearly or directly inform jurors of any election or their concomitant duties. (Compare People v. Jantz (2006) 137 Cal.App.4th 1283, 1292 with People v. Melhado, supra, 60 Cal.App.4th at p. 1536.)
We need not decide whether the prosecutor's emphasis on the strangulation obviated the need for a unanimity instruction, because any error in the failure to give such an instruction was harmless under either the Chapman (Chapman v. California (1967) 386 U.S. 18, 24) or Watson (People v. Watson (1956) 46 Cal.2d 818, 836) standard of prejudice. (See People v. Huggins (2006) 38 Cal.4th 175, 193.) This is so because defendant either committed all of the acts or he committed none of them.
There has long been a split in authority concerning the standard applicable to the erroneous failure to give a unanimity instruction. (People v. Matute (2002) 103 Cal.App.4th 1437, 1448-1449.) We previously have held the Chapman standard applicable to federal constitutional error applies. (People v. Gary (1987) 189 Cal.App.3d 1212, 1218, overruled on another ground in People v. Flood (1998) 18 Cal.4th 470, 481; People v. Metheney (1984) 154 Cal.App.3d 555, 563-564, fn. 5.)
"Under Chapman, . . . '[w]here the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that [the] defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless.' [Citation.] For example, where the defendant offered the same defense to all criminal acts, and 'the jury's verdict implies that it did not believe the only defense offered,' failure to give a unanimity instruction is harmless error. [Citation.] But if the defendant offered separate defenses to each criminal act, reversal is required. [Citations.] The error is also harmless '[w]here the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence . . . .' [Citation.]" (People v. Hernandez, supra, 217 Cal.App.4th at p. 577; see, e.g., People v. Riel (2000) 22 Cal.4th 1153, 1999; People v. Diedrich (1982) 31 Cal.3d 263, 283; People v. Brown, supra, 42 Cal.App.4th at pp. 1501-1502.)
Here, the only defense to all charges — presented through Janet's testimony and defense counsel's argument to the jury — was that Janet lied to the police and made up everything she told them that defendant did. "[I]n order for the unanimity instruction to make a difference, there must be evidence from which jurors could both accept and reject the occurrence of at least the same number of acts as there are charged crimes. [Citation.] There was not. Failure to deliver a unanimity instruction was harmless beyond a reasonable doubt." (People v. Brown, supra, 42 Cal.App.4th at p. 1502.)
II
FAILURE TO STAY EXECUTION OF SENTENCE ON COUNT III
The trial court sentenced defendant to four years on count I, plus consecutive terms of one-third of the middle term on each of the other counts. The court rejected defendant's argument that sentence on count III should be stayed, pursuant to section 654, because counts II and III involved the same act and the same victim, finding them instead to be "separate offenses." Apparently as an alternative to his argument concerning failure to give a unanimity instruction, defendant contends the trial court's failure to stay sentence on count III resulted in imposition of an unauthorized sentence, because the prosecutor relied on the same act — the strangulation — as the basis for both counts II and III. We disagree.
Section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"It is well settled that section 654 protects against multiple punishment, not multiple conviction. [Citation.] The statute itself literally applies only where such punishment arises out of multiple statutory violations produced by the 'same act or omission.' [Citation.] However, because the statute is intended to ensure that defendant is punished 'commensurate with his culpability' [citation], its protection has been extended to cases in which there are several offenses committed during 'a course of conduct deemed to be indivisible in time.' [Citation.] [¶] It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] [The California Supreme Court has] traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Whether a defendant harbored a separate intent and objective for each offense is a factual determination for the trial court. (People v. Capistrano (2014) 59 Cal.4th 830, 886; People v. Osband (1996) 13 Cal.4th 622, 730.) The trial court's conclusion in this regard, whether express or implied, will be sustained on appeal if supported by any substantial evidence. (People v. Osband, supra, at p. 730; see People v. Islas (2012) 210 Cal.App.4th 116, 129.) On review of this issue, we consider the evidence in the light most favorable to the judgment. (People v. Williamson (1979) 90 Cal.App.3d 164, 172.) If we determine the trial court violated section 654, the proper remedy is to stay execution of sentence on the count with the lesser penalty. (People v. Deloza (1998) 18 Cal.4th 585, 591-592; People v. Beamon (1973) 8 Cal.3d 625, 639-640.)
The applicability of section 654 to conceded facts is a question of law. (People v. Harrison, supra, 48 Cal.3d at p. 335.)
"Section 654 prohibits multiple punishment for a single physical act that violates different provisions of law." (People v. Jones (2012) 54 Cal.4th 350, 358, italics added.) As defendant argued, and we discussed, ante, the evidence presented at trial showed acts other than the strangulation that could have constituted aggravated assault. (Compare People v. Aguilar (1997) 16 Cal.4th 1023, 1028, People v. McDaniel (2008) 159 Cal.App.4th 736, 748-749, & People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066 with People v. Jackson (2000) 77 Cal.App.4th 574, 578 & People v. Gutierrez (1985) 171 Cal.App.3d 944, 952.) Since defendant's raising his fists and grabbing the shoe, as if to strike Janet, occurred several hours before the strangulation, the trial court's determination that counts II and III were separate offenses and so could be separately punished is supported by substantial evidence.
We have quoted the pertinent portion of the prosecutor's argument to the jury, ante, and it belies the claim she relied on the same act as the basis for both count II and count III. Although the prosecutor emphasized the choking, she did not rely on it, to the exclusion of all else, with respect to the aggravated assault charge. This being the case, the trial court was free to make its own determination with respect to the applicability of section 654. (See People v. Leonard (2014) 228 Cal.App.4th 465, 500; People v. Bradley (2003) 111 Cal.App.4th 765, 770; cf. People v. McKinzie (2012) 54 Cal.4th 1302, 1368-1369, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; People v. Jones, supra, 54 Cal.4th at p. 359.)
DISPOSITION
The judgment is affirmed.
/s/_________
DETJEN, Acting P.J. WE CONCUR: /s/_________
PEÑA, J. /s/_________
BLACK, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article IV, section 6 of the California Constitution.