Opinion
H035629
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. RONNIE LAWRENCE RAYON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Santa Clara County Super. Ct. No. CC825958
A jury convicted defendant Ronnie Lawrence Rayon of making a criminal threat and felony vandalism. The trial court then found true two special allegations that defendant had suffered two prior juvenile adjudications for purposes of the Three Strikes law. It later struck one of the strikes and sentenced defendant to seven years and four months in prison. On appeal, defendant contends that (1) the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of attempted criminal threat, (2) the trial court erred by failing to instruct the jury sua sponte on the unanimity principle (where verdict may be based on one of a number of unlawful acts, jurors must unanimously agree that the defendant committed the same act), (3) the trial court erred by instructing the jury in modified language of CALCRIM No. 358 (consider the defendant's pretrial statements with caution), (4) the trial court erred by denying his motion for a mistrial grounded upon a witness's revelation that he had been in jail, (5) the trial court erred by giving an erroneous remedial instruction pertinent to the jail revelation, (6) he received ineffective assistance of counsel because his counsel failed to object to evidence of his prior bad character, (7) the trial court erred by denying his motion for juror information and accompanying motion for a new trial grounded upon vote bartering, (8) no substantial evidence supports that the vandalism reached the $400 felony threshold, (9) the trial court erred by using his juvenile adjudication as a strike, and (10) in the event that no one error by itself is sufficient to justify reversal, cumulative error requires reversal. We reject defendant's contentions and affirm the judgment.
BACKGROUND
Desiree Pena was defendant's former girlfriend. Pena and defendant share a son who was born in 2004.
Pena and defendant began dating in 1999 when they were 16. About a year after they had begun dating, defendant began to be abusive toward Pena. For an incident that occurred in 2004, defendant suffered a misdemeanor conviction for domestic violence against Pena. Defendant refused to help Pena raise their son. He dated other women and had a child by one of the women. He frequently called Pena at work and Pena testified, "Sometimes it would be I'm going to kill you phone calls." Pena had visible bruises at work and her coworkers knew about defendant's abuse. By 2008, Pena lived with her son in an apartment on Leigh Avenue.
On November 18, 2008, defendant telephoned and texted Pena throughout the day. He was angry and accused Pena of being with someone. According to Pena, defendant said in one of the calls "Something about I have some guy around his kid, he is going to kill me, things like that." In the evening, Pena arrived at her apartment and joined her brother, Richard Salas, who had been watching Pena's son while Pena attended school classes. Pena's friend, Eloy Carbajal, arrived about 15 minutes afterward and heard Pena and Salas discussing defendant's phone calls and texts. Pena gave Carbajal her phone, and Carbajal read one of the texts. Carbajal took the phone outside, went to a neighbor's apartment, and telephoned defendant. Pena then took out the trash. While returning, she saw Carbajal and her neighbor on the stairs leading to the neighbor's apartment. She joined them in conversation. Defendant then drove into the apartment complex with a companion, and the two ran up the stairs to Pena's apartment. Defendant was "frantic, angry, [yelling] all over the place" and said something to the effect of "I'm going to kill this bitch." Defendant and his companion ran inside and then out of Pena's apartment. Defendant exclaimed "this bitch is over here," and the two ran up the stairs towards the neighbor's apartment. Pena then retreated inside her neighbor's apartment. Defendant then became "out of control" and exclaimed, "Bitch, come out." He threatened to kill Pena and tried to get into the neighbor's apartment. The neighbor, however, would not let him through the front door. Defendant then ran down the stairs to the carport where Pena had parked her car and began banging the car. He damaged the front grill and quarter panels. And he flattened at least two tires by stabbing, slashing, or cutting them on the side. Pena was scared and took defendant's threats seriously. She therefore called 911. Carbajal and two or three friends who had joined him began threatening defendant and his companion. Defendant and his companion returned the threats. They all stopped and drove away when they learned that the police had been summoned.
According to defendant's testimony, defendant spoke with Pena on the phone, Pena asked for money to buy their son food, defendant spoke with their son who said that Pena's boyfriend was hitting him, and Pena spoke with defendant and told him that Carbajal was the man of the house and would discipline their son if the son misbehaved; thereafter, Carbajal telephoned defendant and told defendant that he would discipline the son if the son misbehaved.
When the police were interviewing Pena, defendant began texting and telephoning Pena. His messages were that "He was coming back and he was killing everybody that was around," "he was going to light up the place," and "he was going to blast everybody." Another was to the effect of "Get my son out of there. I'm coming back and blasting all those fools." In one exchange, Pena told defendant to leave her alone and defendant replied "If he can't have me, no one is going to have me." Pena was crying and scared. The police telephoned a judge and obtained an emergency protective restraining order. They also recorded some of the phone calls with defendant. During one of the recorded calls, defendant said the following to Pena: "I don't give a fuck, you shouldn't have pulled--aww, nigga, it ain't your friend, nigga; he, he called me and told me, well, dah-dah-dah-dah-dah, and then nigga gonna pull, I think he gonna call his cousin, they're gonna pull off some shit on that nigga, oh yeah, I got somethin' for you, you can pull out this. I'm gonna pull out this hundred-round on they ass. Anything that was, that apartment complex is getting lit up tonight, nigga; just don't mention my name." The police stayed in the vicinity until midnight, but defendant did not return.
FAILING TO INSTRUCT ON LESSER INCLUDED OFFENSE--ATTEMPTED
CRIMINAL THREAT
The parties agree that the People relied on two remarks to support the criminal threats conviction: defendant's remarks at the neighbor's apartment; and defendant's remarks over the telephone.
A trial court has a duty to instruct the jury on any offense "necessarily included" in the charged offense if substantial evidence lends support for the lesser crime's commission. (People v. Birks (1998) 19 Cal.4th 108, 112.) As the California Supreme Court has explained, "a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (Id. at p. 117.) "This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence." (Id. at p. 112.)
Even in the absence of a request for an instruction on the lesser included offense, the trial court must give the instruction if a reasonable jury might find the evidence of the lesser offense persuasive. (People v. Lewis (2001) 25 Cal.4th 610, 645.) However, "the court 'has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction.' " (People v. Cole (2004) 33 Cal.4th 1158, 1215, quoting People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
In assessing a claim of failure to instruct on a lesser included offense, "we review independently the question whether the trial court failed to instruct on a lesser included offense." (People Cole, supra, 33 Cal.4th at p. 1215.)
Attempted criminal threat is a lesser included offense of criminal threat. (People v. Toledo (2001) 26 Cal.4th 221, 226, 230.) In Toledo, the court explained that a person commits an attempted criminal threat "if a defendant, . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat." (Id. at p. 231.) "[I]n most instances the crime of attempted criminal threat will involve circumstances in which the defendant in fact has engaged in all of the conduct that would support a conviction for criminal threat, but where the crime of criminal threat has not been completed only because of some fortuity outside the defendant's control or anticipation (for example, because the threat is intercepted or not understood, or because the victim for some reason does not actually suffer the sustained fear that he or she reasonably could have sustained under the circumstances)." (Id. at p. 234.)
Defendant argues that the trial court erred in failing to instruct sua sponte on attempted criminal threat because the evidence of Pena's sustained fear was "relatively weak." He claims that "There were conflicting accounts of what exactly had occurred at the apartment complex." He emphasizes that he denied making any threats while he was at the apartment complex. He also urges that "The evidence that the subsequent call placed Pena in sustained fear was also equivocal" because the threat "did not appear to be directed at Pena but was rather a claim that [he] was going to get 'they ass,' with 'they' referring to the men who had attacked him." Defendant's analysis is erroneous.
Defendant's theory is that he did not threaten Pena at the apartment complex. But this presents an all-or-nothing scenario: either defendant threatened Pena, as Pena testified, or defendant did not threaten Pena, as defendant testified; if the jury accepted the former, then defendant committed a crime and must be convicted; if the jury accepted the latter, then defendant committed no crime and must be acquitted. The flaw in defendant's argument is that it is inconsistent with his theory--it presumes that defendant made a failed threat to Pena (one that did not actually cause Pena to be in sustained fear for her safety). The argument requires the jury to accept some (threat) but not all (sustained fear) of the People's case. But "disbelief of all or part of the prosecution case does not require instruction on lesser included offenses." (People v. Acevedo (1985) 166 Cal.App.3d 196, 201.) It simply leads the jury to acquit.
Defendant's theory that he did not threaten Pena over the telephone is also an all-or-nothing scenario. Either defendant threatened Pena (and others), as the recorded remarks can be interpreted, or defendant threatened others (but not Pena), as the recorded remarks can be interpreted. If the jury accepted the former, then defendant committed a crime and must be convicted; if the jury accepted the latter, then defendant committed no crime against Pena and must be acquitted. In short, in this case there was no evidence--much less evidence " 'substantial enough to merit consideration' "--from which a reasonable jury could conclude "that the lesser offense, but not the greater, was committed." (People v. Breverman (1998) 19 Cal.4th 142, 162.) Since the evidence did not allow for a conviction for attempted criminal threat, the trial court did not err in failing to instruct on the lesser included offense.
FAILING TO INSTRUCT ON THE UNANIMITY PRINCIPLE
"Defendants in criminal cases have a constitutional right to a unanimous jury verdict." (People v. Napoles (2002) 104 Cal.App.4th 108, 114.) When a defendant is charged with a single criminal act, but the evidence reveals more than one instance of the charged crime, either the prosecution must select the particular act upon which it relies 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. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) If the prosecution does not make a selection, the trial court has a sua sponte duty to give an instruction along the lines of CALCRIM No. 3500, stating that the jury must unanimously agree upon the act or acts constituting the crime. (People v. Russo, supra, at p. 1132.) CALCRIM No. 3500 provides in pertinent part: "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 purpose of the unanimity instruction is to prevent a verdict that results from some jurors believing the defendant committed one act and others believing the defendant committed a different act, without agreement on what conduct constituted the offense. (People v. Washington (1990) 220 Cal.App.3d 912, 915-916.)
The prosecution can make an election by "tying each specific count to specific criminal acts elicited from the victims' testimony"--typically in opening and/or closing argument. (People v. Diaz (1987) 195 Cal.App.3d 1375, 1382; e.g., People v. Jantz (2006) 137 Cal.App.4th 1283, 1292; People v. Mayer (2003) 108 Cal.App.4th 403, 418-419; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455.)
In his opening statement, the prosecutor in this case outlined that the evidence would show that defendant had threatened Pena at the neighbor's apartment and on the telephone recording. He stated: "Again, that phone call plus the other threat earlier in the day is a criminal violation." During argument, however, he explained his criminal-threat case as follows: "I have to prove that he intended his statement to be understood as a threat and intended it to be communicated to Desiree Pena. This is a specific intent crime. I think that's clear. You've heard a CD in this case . . . . He was threatening to kill her or words to that effect. [¶] The threat actually did cause her to be in sustained fear, and that fear was reasonable. That was her testimony[.] I don't think it's going to be disputed when she caused the--she finally called the cops over because of this fear, and I think it was reasonable. I mean, you saw the police. They--they thought it was reasonable by their actions. They stuck around with a number of cars hidden in the area because they took the guy seriously, as anyone would."
Defendant's argument followed the prosecutor's explanation: "With regard to the [criminal threat]. Yes, you're going to hear [defendant's] ranting. What did he say? I think he said it wasn't his proudest moment. On the--let's see. On the disk." Thereafter, defense counsel cautioned the jury to carefully listen to the recording because there were differences between the recording and the written transcription. Defense counsel then continued: "With regard to the [criminal threat] and what you will hear, there's a lot said on that call. A lot of it is ranting. A lot of it is upset." Defense counsel later returned to the theme: "So back to the 422. Basically, a 422 being the criminal threat. . . . [¶] Anyway, the phone calls were initiated by Ms. Pena to call him to try and get him--it was on the recording--to try and get him to say something incriminating for the police so that they could then prosecute him later." Defense counsel then urged that Pena was not in actual sustained fear from the phone call because she was with the police during the call.
Defendant argues that the prosecutor's argument was insufficient to constitute an election. He points out that "The reference to the CD pertained to the phone call recorded by the police, while the claim that Pena 'called the cops over because of this fear' necessarily referred to remarks that occurred prior to the phone call, since the police were already with Pena at the time the call occurred." He concludes that "it was not clear that the prosecution was relying exclusively either on the CD or on the remarks at the apartment complex." We disagree with defendant's analysis.
Though the prosecutor mentioned Pena's fear that preexisted the telephone threat, he mentioned that fear in the context of arguing that Pena's fear from the telephone threat was reasonable. But, for the act itself--the telephone threat--he focused on the recording (CD) and that the officers took defendant's threat seriously. Moreover, the prosecutor did not urge that the apartment threat could be the basis for a conviction. In addition, defendant's argument illustrates that he understood the prosecutor's argument to be focused exclusively on the telephone threat. He highlighted the weaknesses in the People's telephone-threat theory without challenging the apartment-threat theory.
The prosecutor's election in this case is not comparable to the insufficient election made in People v. Melhado (1998) 60 Cal.App.4th 1529. There, the prosecutor informed the court, but not the jurors, of his election. And during closing argument he referred to three separate events constituting threats. At best, it was "possible to parse the prosecution's closing argument in a manner which suggests that more emphasis was placed on the 11 a.m. event than on the others." (Id. at p. 1536.)
Here, the prosecutor clearly and directly informed the jury that the criminal threat emanated from the "CD in this case [where] [h]e was threatening to kill her or words to that effect."
The dissent would accept the People's apparent concession of the prosecutorial election issue. But a reviewing court "is not bound to accept concessions of parties as establishing the law applicable to a case." (Desny v. Wilder (1956) 46 Cal.2d 715, 729.) "[O]ur duty [is] to declare the law as it is, and not as either appellant or respondent may assume it to be." (Bradley v. Clark (1901) 133 Cal. 196, 210.)
In a related argument, defendant points out that "The jury instructions, like the prosecutor's argument, also failed to select an evidentiary basis for the threat count." And he goes on to suggest that the instruction telling the jury that it need not view with caution any of his unrecorded statements that constitute a threat "appeared to take for granted the notion that [his] unrecorded remarks--in other words, his remarks at the apartment complex--could be the basis for the threat count." That may be. But the trial court instructed the jury before the parties argued the case. Thus, after argument and the prosecutor's therein election, the not-view-with-caution instruction simply became inapplicable to the extent it pertained to unrecorded criminal threats. The trial court anticipated this possibility by instructing the jury in the language of CALCRIM No. 200, which informs the jury that some of the instructions may be inapplicable. It told the jury the following: "Some of these instructions may not apply, depending upon your findings about the facts of the case. Do not assume just because I give a particular instruction that I'm suggesting anything about the facts."
INSTRUCTING WITH MODIFIED CALCRIM NO. 358
The trial court instructed the jury in modified language of CALCRIM No. 358 as follows: "You have heard evidence that the defendant made oral or written statements before the trial. You must decide whether the defendant made any of these statements in whole or in part. If you decide that the defendant made such statements, consider the statements along with all of the other evidence in reaching your verdict. It is up to you to decide how much importance to give to the statements. [¶] Consider with caution any statement made by the defendant tending to show his guilt unless the statement was written or otherwise recorded. This instruction does not apply to any statement of defendant that is alleged to constitute [a criminal threat]." (Italics added.)
Defendant contends that the emphasized modification to CALCRIM No. 358 is "legally flawed." According to defendant, the sole evidence that he had made a criminal threat at the apartment complex was Pena's testimony and the modification of CALCRIM No. 358 "unfairly tipped [the credibility] contest by telling the jury that it need not take a cautious view toward Pena's allegations." There is no merit to defendant's contention.
The trial court's modification stems from People v. Zichko (2004) 118 Cal.App.4th 1055. There, the defendant, as in this case, was charged with making criminal threats. The court held that the trial court did not have a duty to instruct with CALJIC No. 2.71--instructing that defendant's out-of-court admissions should be viewed with caution--because the statements themselves constituted the charged offense. It reasoned that, because the defendant's out-of-court statement was an element of the charged offense, "instructing the jury with CALJIC No. 2.71 . . . would have been inconsistent with the reasonable doubt standard of proof. The purpose of CALJIC No. 2.71 is to direct the jury to use caution in deciding whether an admission was made. Here, as the trial court instructed, the People had the burden of proving [the defendant] guilty beyond a reasonable doubt and that he must be found not guilty unless the elements of the crime were proven beyond a reasonable doubt. Therefore, a guilty verdict required the jury to conclude beyond a reasonable doubt that [the defendant] made the threatening statements. To also instruct the jury that the statements 'should be viewed with caution' (CALJIC No. 2.71) would have been at least superfluous and may have been confusing to the jury. It could have misled the jury into believing that it could find [the defendant] guilty even if it did not conclude beyond a reasonable doubt that the statements were made, as long as the jury exercised 'caution' in making its determination." (People v. Zichko, supra, at p. 1060.)
Here, the trial court's modification of CALCRIM No. 358 simply accounts for the circumstance that defendant made statements that (1) would warrant the cautionary instruction, and (2) were not within the scope of the cautionary instruction. It is therefore a correct statement of the law.
Defendant argues that we should not follow Zichko because the case is inconsistent with People v. Carpenter (1997) 15 Cal.4th 312, 393, superseded by statute on a different point as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107. Not so.
In Carpenter, the defendant was convicted of various crimes, including attempted rape and murder. During the course of one of the incidents, he accosted two hikers. One of the hikers heard the defendant say to the other hiker, " ' "I want to rape you." ' " (People v. Carpenter, supra, 15 Cal.4th at p. 345.) Our Supreme Court concluded that the cautionary instruction should have been given, finding that the defendant's "statement of intent to rape [the hiker] was part of the crime itself." (Id. at p. 392.) It went on to note that " '[t]he purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made,' " and that "[t]his purpose would apply to any oral statement of the defendant, whether made before, during, or after the crime." (Id. at p. 393.) The court, however, did not consider a statement that itself constituted the crime. The crucial difference is that in order to convict defendant here of making a criminal threat, the jury must necessarily find that he had made the statements at issue beyond a reasonable doubt.
Defendant also suggests that Zichko is contrary to People v. Bunyard (1988) 45 Cal.3d 1189, because the statements at issue in Bunyard "constituted a criminal act." Defendant is again incorrect.
The defendant in Bunyard was convicted of murder. He argued on appeal that the trial court should have given the cautionary instruction with respect to statements he had made soliciting others to commit the murder in return for money. The Supreme Court concluded that the jury should have been instructed that evidence of oral admissions must be viewed with caution, but that the trial court's failure to do so was harmless error under the circumstances of the case. Thus, the essence of the crime in Bunyard was not any words the defendant had spoken, but the murder.
DENIAL OF MISTRIAL MOTION
Defendant unsuccessfully moved for a mistrial during a break in the middle of Pena's testimony. Defendant argued that the prosecutor had engaged in misconduct because Pena had revealed that defendant had been in jail in 2004. He urged that he had been prejudiced by the remark and would now need to explain to the jury that he had been incarcerated for violating juvenile parole.
We appreciate and recount the detailed background articulated by the trial court in an explanation of its ruling.
"I would just like to put on the record my more complete explanation for the denial of the defendant's request for a mistrial at the conclusion of yesterday's session. [¶] And again, to explain the background, the defense . . . had requested orally as part of the pretrial discussions that there would be no reference to [defendant] getting out of jail in May of 2008 for the incident charged in Counts 4 through 6 because that was the event that prompted him to return to Ms. Pena's house. [¶] The parties did stipulate to refer to the defendant as having returned from out of town at that time in mid-May of 2008. And as I mentioned yesterday, because the parties stipulated to that, I did not need to resolve any issue. [¶] Yesterday during the testimony of Ms. Pena, Ms. Pena testified that [defendant] showed up around mid-May. And when [the prosecutor] asked her to confirm if he had been away out of town before this, she, Ms. Pena said he was in jail. There was an objection. I sustained the objection and instructed the jury to disregard the answer. [¶] Then a few minutes later when [the prosecutor] asked Ms. Pena when in her mind she had ended the romantic relationship, how many months before that mid-May time period. Ms. Pena said that it was when he was out of town. And when she said out of town, she used quotation marks with her hands. And there was an objection and I sustained the objection. [¶] And then in follow-up questions she said that--when [the prosecutor] asked her how long they were broken up, she said they were broken up for a while when he was out of town, and she did not use any quotation marks or any type of sarcasm, and then saying at that point it was for about six months. [¶] In addition, earlier in her testimony there was some comment in her testimony to [defendant] being in and out of jail. I believe it was in the context of questions about her relationship with [defendant] and [defendant's] relationship with their joint son. [¶] And I explained yesterday I am denying the defense motion for a mistrial based on those comments. [¶] First, I find no prosecutorial misconduct. [¶] Second, I find no prejudice requiring a mistrial. The two references to jail, first in and out of jail, and returning from jail were both in the context of why Ms. Pena had not seen [defendant] and the nature of their relationship at the time during that period. [¶] The parties agreed that [defendant's] prior 2004 domestic violence misdemeanor conviction would come in and it was relevant. As part of the motions in limine, I ruled that the 1999 and 2000 juvenile adjudications would both come in for impeachment if the defendant testified, although based on defendant's request, they would be sanitized to be referred to as felonies of moral turpitude. Again, that was based on the defendant's request to sanitize them if they did come in. [¶] [Defendant's] attorney, promised during the opening that the defendant would testify and presented her view of what that testimony would be. [¶] So, in fact, [defendant's] two juvenile adjudications will come in. So all three adjudications--all three adjudications and convictions will come in. In light of that, there is no prejudice warranting mistrial from the comments. [¶] First, Ms. Pena referred to jail, not prison, and she did not mention the nature of the crime. Because the jury will hear that [defendant] had been convicted or suffered juvenile adjudications three times, there is no prejudice from the comment that he was in and out of jail because that's consistent with him having the three adjudications or convictions over that time period. [¶] As far as the comment that in particular in May of 2008 [defendant] was out of town because he was in jail, I did strike that and instructed the jury to disregard that. [¶] I would consider any request from the defense for any further jury instructions or stipulations they believe might help reduce what they perceive as any prejudice. For example, I offered to instruct the jury or advise the jury that the three convictions or adjudications that were mentioned--that will be mentioned in the trial were [defendant's] only adjudications, and that there are no other convictions or adjudications. And if defense has any other request to address or explain why in May of 2008 there was a brief incarceration in jail because of some--the fact that there was some minor transgression in connection with the earlier crime, if either counsel would like to raise that, I would be happy to consider that. But as it stands right now, I instructed the jury to disregard the fact that in May of 2008, [defendant] was in jail. [¶] And as I told the attorneys in chambers, Ms. Pena should be admonished again before she testifies this morning not to mention the fact that the defendant was in jail at any time, not to mention any other crimes other than the 2004 domestic violence incident that she has already covered in her testimony, and not to mention that [defendant] was ever involved or convicted of any robberies."
The jury acquitted defendant of assault, kidnapping, and criminal threat--crimes that were alleged in counts 4 through 6 as having occurred between April and June 2008.
The comment is ambiguous and did not generate an objection. The colloquy is as follows: "Q. After 2004, how often would you see him or how often would you get together? Was there a pattern? Was there a--you know, anything like that you can describe? [¶] A. He stayed--he stayed locked up, and then-- [¶] Q. I don't want to get into that. Let me just ask you-- [¶] A. Well, he was in and out, I would say. And then the times that he was out, he was out and about."
" 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' " (People v. Wharton (1991) 53 Cal.3d 522, 565.) A finding of incurable prejudice may be based on prosecutorial misconduct, juror misconduct, or a witness's volunteered statements. (People v. Williams (1997) 16 Cal.4th 153, 211.)
We emphasize that a trial court's ruling denying a motion for mistrial is reviewed under the deferential abuse-of-discretion standard. (People v. McLain (1988) 46 Cal.3d 97, 113.) Indeed, having witnessed the alleged misconduct, the trial court is in a much better position to assess any prejudicial impact it might have, as well as the ability of curing it by instruction or admonition. (See People v. Hardy (1992) 2 Cal.4th 86, 213.)
" 'A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that "the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions." ' " (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.)
Here, the trial court sustained objections to Pena's "jail" testimony and sarcasm. And it instructed the jury to disregard the "jail" testimony. There was no further reference to "jail." We presume that the prompt admonition was sufficient to cure any potential prejudice from the testimony.
Defendant is less than clear. He appears to argue that this case is exceptional because the testimony was so prejudicial that the cautionary instruction given by the trial court was ineffective. He summarizes: "Pena's testimony painted a damning and wholly inappropriate character portrait and necessitated an extensive discussion of [defendant's] parole revocations. Thus it would have swayed the jury's analysis even on those counts where there was objective evidence to support the prosecution's contentions, because the implication of Pena's remarks was that [defendant], as a violent recidivist, was the type of person who would have issued a serious threat and engaged in vandalism against an ex-girlfriend."
The exceptional case is where the incompetent evidence goes to the main issue and where the proof of defendant's guilt is not clear and convincing. (People v. Hardy (1948) 33 Cal.2d 52, 61.) In such an instance the error in admitting the incompetent evidence cannot be cured by striking out and instructing the jury to disregard that evidence. (Ibid.) Otherwise, "the trial court is permitted to correct an error in admitting improper evidence by ordering it stricken from the record and admonishing the jury to disregard it, and the jury is presumed to obey the instruction." (Ibid.)
We find nothing exceptional in this case, however. This primarily follows because the import of the evidence did not go to the main issue whether defendant committed a criminal threat or vandalism. In addition, the trial court could have rationally disagreed that the case was close simply because the case, to some extent, involved a credibility contest between defendant and Pena--defendant had a history of violence against Pena; one of the threats at issue had been recorded; and the vandalism was essentially uncontested. Moreover, the trial court expressly disagreed with defendant's prejudice assessment for rational reasons--the "jail" references were made in a collateral context rather than a guilt-or-innocence context; and the "jail" references were consistent with what the jury would learn about defendant having suffered three priors. Given these factors, the trial court could have rationally concluded that the prejudice from the "jail" references could be cured by the admonition. This case therefore falls within the ordinary where it can be presumed that a cautionary instruction cured the prejudicial impact of inadmissible evidence. Defendant's reliance upon factors supporting a different conclusion fails to demonstrate an abuse of discretion. (People v. Williams (1981) 115 Cal.App.3d 446, 453; see People v. Harris (1994) 22 Cal.App.4th 1575, 1581.)
INSTRUCTING TO REMEDIATE THE JAIL REVELATION
The trial court instructed the jury as follows: "Desiree Pena was admonished by the Court not to talk about certain issues. The fact that [defendant] was in jail is not relevant by itself."
Defendant objects to the words "relevant by itself" and argues that, "By telling the jury that [his] jail time was not relevant 'in itself,' the court implied that the jury could use the evidence of that jail time as a collateral factor bearing on [his] credibility." We disagree with defendant's analysis.
In deciding whether instructional error occurred, we "assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." (People v. Mills (1991) 1 Cal.App.4th 898, 918.) In that context, we then "determine whether it is reasonably likely the jurors understood the instruction[s] as [defendant] suggests. [Citation]. In making that determination, we must consider several factors including the language of the instruction[s] in question [citation], the record of the trial [citation], and the arguments of counsel." (People v. Nem (2003) 114 Cal.App.4th 160, 165.)
"[T]he case law is clear that whether the giving of a concrete instruction is confusing or erroneous must be determined from the instructions as a whole. . . . 'Error cannot be predicated upon an isolated phrase, sentence or excerpt from the instructions since the correctness of an instruction is to be determined in its relation to other instructions and in the light of the instructions as a whole. [Citations.] Accordingly, whether a jury has been correctly instructed is not to be determined from a part of an instruction or one particular instruction, but from the entire charge of the court.' " (People v. Patterson (1979) 88 Cal.App.3d 742, 753.)
Even if we conclude that " 'a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.' " (People v. Hernandez (2003) 111 Cal.App.4th 582, 589.)
Errors in jury instructions are reviewed under People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman, supra, 19 Cal.4th at pp. 172-178.) Therefore, an error requires reversal only "an examination of the entire record establishes a reasonable probability that the error affected the outcome." (Id. at p. 165, citing People v. Watson, supra, at p. 836 and Cal. Const., art. VI, § 13.)
Here, the challenged instruction is, at worst, ambiguous. A juror could reasonably construe the charge as (1) a benign admonition against finding defendant guilty simply because he had been in jail, and (2) a reminder to hold the People to their burden of proof. The trial court gave the jury other, similarly worded instructions to that effect. For example, the trial court instructed in the language of CALCRIM No. 372 (flight), in part, as follows: "However, evidence that the defendant fled cannot prove guilt by itself." (Italics added.) And it instructed in the language of CALCRIM No. 852 (domestic violence), in part, as follows: "[Commission of uncharged domestic violence] is not sufficient by itself to prove that the defendant is guilty . . . . The People must still prove each charge beyond a reasonable doubt." (Italics added.)
It is true that the challenged instruction could be construed as defendant would have it, i.e., as implying that the jury could consider defendant's jail time for purposes of assessing his credibility. But this construction is contrary to the trial court's earlier instruction to disregard the "jail" testimony. We presume that the jury followed the first, definitive instruction and did not inconsistently construe the second, ambiguous instruction.
"As Chief Justice Rehnquist has observed: 'Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.' " (People v. Williams (1995) 40 Cal.App.4th 446, 457.)
In any event, the jury's supposed belief that defendant's jail time might be relevant to his credibility most certainly did not tip the credibility scale against defendant and affect the outcome of the case. The jury knew that defendant had committed three felonies with moral turpitude. Also knowing that defendant had committed three felonies with moral turpitude and served jail time adds very little to the impeaching character of the felony evidence. Even without the "jail" testimony, the jury could reasonably infer that defendant had suffered jail time, if not prison time, for three felonies with moral turpitude.
In view of the foregoing, it is not reasonably likely that the jury was misled, misunderstood, or drew the conclusion that it could convict defendant based on a lack of credibility from having served jail time. (People v. Hernandez, supra, 111 Cal.App.4th at p. 589.) Alternatively, any error was harmless. (People v. Breverman, supra, 19 Cal.4th at pp. 172-178.)
INEFFECTIVE ASSISTANCE OF COUNSEL
Pena testified, without objection, that defendant never worked, never assisted with raising their son, used marijuana as his drug of choice, and was high on methamphetamine on the night in question. Defendant contends that defense counsel's failure to object to this testimony on the grounds of relevancy and Evidence Code section 352 (more prejudicial than probative) deprived him of effective assistance of counsel. He claims that the "comments did not speak to any issue that was at stake in the trial [and] merely functioned as a generalized attack on his character, and should consequently have been excluded." Defendant fails to carry his burden to demonstrate ineffective assistance of counsel.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right "entitles the defendant not to some bare assistance but rather to effective assistance." (Ibid.) But "The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." (Yarborough v. Gentry (2003) 540 U.S. 1, 8.)
"To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v. Washington (1984) 466 U.S. 668, 687-696.) 'When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. "If the record sheds no light on why counsel acted or failed to act in the manner challenged, 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' [citation], the contention must be rejected." ' " (People v. Samayoa (1997) 15 Cal.4th 795, 845.)
Defendant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make every effort to avoid the distorting effects of hindsight and to evaluate the challenged conduct from counsel's perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561; Strickland v. Washington, supra, 466 U.S. at p. 689.) In evaluating whether trial counsel's representation was deficient "we accord great deference to the tactical decisions of trial counsel in order to avoid 'second-guessing counsel's tactics and chilling vigorous advocacy by tempting counsel "to defend himself [or herself] against a claim of ineffective assistance after trial rather than to defend his [or her] client against criminal charges at trial." ' " (In re Fields (1990) 51 Cal.3d 1063, 1069.) A court must indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, at p. 689; People v. Hart (1999) 20 Cal.4th 546.) The burden is to establish the claim not as a matter of speculation but as a matter of demonstrable reality. (People v. Garrison (1966) 246 Cal.App.2d 343, 356.) As to the failure to object in particular, "[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540.) This is the case especially when trial counsel might reasonably have concluded that an objection would be futile. (People v. Price (1991) 1 Cal.4th 324, 387.)
The point here does not concern the admissibility of evidence. It concerns whether defense counsel had reason to refrain from objecting to the admissibility of evidence. Here, defendant concedes that the People make "a fair point in noting that [his] state of intoxication on November 18, 2008 was 'relevant to show Pena's reason to fear him.' " Thus, counsel may well have reasoned that any objection to the intoxication evidence would be futile. We recognize that defendant urges that the evidence painted a general picture of defendant's penchant for intoxication as distinguished from his specific condition on the night in question. But defendant's disagreement reveals a difference of opinion rather than of law. Pena's intoxication testimony was brief, and defense counsel may have decided against objecting because an objection might (1) provoke a relevancy argument that would prolong the jury's exposure to the intoxication subject, and (2) be unsuccessful in any event. The same holds true for the failure-to-support and jobless evidence. Defendant concedes that the relevancy was aimed toward establishing that he went to the apartment complex to continue his abusive relationship with Pena rather than to protect his son. Though he urges that the relevancy was "highly strained," defense counsel could have decided against objecting by reasoning that the trial court might take a highly strained view of relevancy and an unsuccessful objection would only serve to unduly emphasize the evidence. Again, the failure to object rarely establishes ineffectiveness of counsel. An attorney may choose not to object for many reasons, our review is highly deferential, and we presume that counsel's acts were within the wide range of reasonable professional assistance.
MOTION FOR JUROR INFORMATION AND NEW TRIAL
"After a jury convicts a defendant, defense counsel will often wish to interview jurors (or have them interviewed by an investigator). 'It is not uncommon at the conclusion of a criminal trial for the attorneys representing a convicted defendant to attempt to contact jurors to discuss the case with them. This procedure is usually employed in an effort to learn of juror misconduct or other information that might provide the basis for a motion for a new trial.' [Citation.] While counsel may wish to inquire whether misconduct prejudiced their clients, jurors often want to keep their contact information confidential. 'Discovery of juror names, addresses and telephone numbers is a sensitive issue which involves significant, competing public-policy interests.' " (People v. Tuggles (2009) 179 Cal.App.4th 339, 380.)
Disclosure of juror personal identifying information is governed by sections 206 and 237 of the Code of Civil Procedure. In a criminal case, records containing juror identifying information are sealed--"extracted or otherwise removed from the court record." (People v. Carrasco (2008) 163 Cal.App.4th 978, 989.) Following a verdict, a defendant may "petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. . . . The court shall consider all requests for personal juror identifying information pursuant to Section 237." (Code Civ. Proc., § 206, subd. (g).) "The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release" of the requested information. (Id. § 237, subd. (b).)
Trial courts have broad discretion to allow, limit, or deny access to jurors' personal contact information (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1091; People v. Tuggles, supra, 179 Cal.App.4th at p. 380), and we review the denial of a petition filed pursuant to Code of Civil Procedure section 237 for an abuse of discretion (People v. Jones (1998) 17 Cal.4th 279, 317; People v. Carrasco, supra, 163 Cal.App.4th at p. 991).
After the jury returned its verdict in this case, defendant filed a petition for the disclosure of juror identifying information. In support of the petition, he filed a juror declaration in which the juror explained that the jury had been deadlocked during deliberations but were told by the trial court to return until it reached a unanimous verdict; the juror continued that "Myself and my fellow jurors felt compelled by the Judge's statements to arrive at a unanimous verdict, despite what we thought"; the juror concluded that "In the end, the only way [we] were able to reach a unanimous verdict was to trade votes. The final verdict was determined by bartering, rather than any actual consideration of the evidence." The People filed a written opposition to defendant's petition. Following consideration of the papers, the trial court found that defendant had "not shown a prima facie showing of good cause for releasing the juror's personal identification information." It explained that there was no need for juror information since defendant could make a motion for a new trial supported by the juror's declaration. And it continued that the juror's declaration was insufficient to establish misconduct under the authority of Evidence Code section 1150 and People v. Blau (1956) 140 Cal.App.2d 193 (Blau), and People v. Root (1952) 112 Cal.App.2d 122 (Root). It later denied defendant's motion for a new trial that was supported by the juror's declaration.
Defendant contends that Blau and Root assert "a proposition that is clearly too broad" and do not "reflect the enactment of Evidence Code section 1150, which went into effect in 1967." In essence, defendant contends that, in failing to find that the juror's declaration supported jury misconduct by vote trading, the trial court misapplied Evidence Code section 1150 and relied upon outdated case law. We disagree.
Evidence Code section 1150, subdivision (a), provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
" 'This statute distinguishes "between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved . . . ." ' [Citation.] ' "This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent. The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration." ' " (People v. Danks (2004) 32 Cal.4th 269, 302, quoting People v. Steele (2002) 27 Cal.4th 1230, 1261, quoting People v. Hutchinson (1969) 71 Cal.2d 342, 349, 350.)
"Among the overt acts that are admissible and to which jurors are competent to testify are statements. Section 1150, subdivision (a), expressly allows proof of 'statements made . . . either within or without the jury room . . . .' . . . [¶] Although this evidence may be received, it must be admitted with caution. Statements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors--e.g., what the juror making the statement meant and what the juror hearing it understood. They are therefore more apt to be misused by counsel in an effort to improperly open such processes to scrutiny. But no such misuse is threatened when . . . the very making of the statement sought to be admitted would itself constitute misconduct. Such an act is as much an objective fact as a juror's reading of a novel during the taking of testimony [citation], or a juror's consultation with an outside attorney for advice on the law applicable to the case." (In re Stankewitz (1985) 40 Cal.3d 391, 398.)
In Blau and Root, trial courts denied new trial motions based on juror misconduct. In Blau, a juror affidavit stated that some of the jurors had been inclined to vote in favor of the defendant's guilt, but voted for his acquittal when other jurors agreed to vote him guilty of a lesser offense. (Blau, supra, 140 Cal.App.2d at p. 217.) The appellate court upheld the denial of the defendant's new trial motion, concluding: "Jurors may not impeach their verdict by affidavit that it was the result of compromise, or for other irregularity other than that it was arrived at by chance." (Ibid.) In Root, the defendant submitted affidavits by jurors stating that those voting not guilty were persuaded by the foreman to change their votes to guilty on one count, while jurors voting guilty changed their votes to not guilty on the other three counts. (Root, supra, 112 Cal.App.2d at pp. 126-127.) The defendant conceded that "the verdict could not be impeached by the jurors in this fashion." (Id. at p. 127.)
Defendant appears to find these cases "outdated" because they predate the enactment of Evidence Code section 1150. However, nothing in the text of Evidence Code section 1150 invalidates or casts aspersions on Blau or Root. Instead, Evidence Code section 1150 restricts the circumstances under which jurors may impeach a verdict. The comment to Evidence Code section 1150 states that the section permits evidence of misconduct by a trial juror to be admitted, but "forbids the reception of evidence as to the effect of such misconduct on the minds of the jurors." (Assem. Com. on Judiciary com., 29B pt. 3B West's Ann. Evid. Code (2009 ed.) foll. § 1150, p. 426.) The comment also notes that the section "makes no change in the rules concerning when testimony or affidavits of jurors may be received to impeach or support a verdict. Under existing law, a juror is incompetent to give evidence as to matters that might impeach his verdict." (Ibid.)
A juror's conclusion that votes changed because of vote bartering implicates the mental processes of jurors and is not "open to sight, hearing, and the other senses and thus subject to corroboration." (People v. Hutchinson, supra, 71 Cal.2d at p. 350.) In the very contentious atmosphere of jury deliberations, a jury can be expected to measure the relative strengths and weaknesses of the charged counts in the process of arriving at a verdict. What one juror might understand as vote bartering, another juror might understand as the weighing process. In short, a juror's accusation that vote bartering occurred--as is the case here--implicates fellow jurors' "reasons for assent or dissent." (Id. at p. 350.) It is therefore inadmissible to impeach a verdict.
Other cases predating Evidence Code section 1150 reject challenges similar to that posed by defendant in the present case. In People v. Decker (1954) 122 Cal.App.2d 447, the appellate court upheld the denial of a new trial based on juror affidavits alleging vote switching among the counts. The court noted: "There is nothing in the record to indicate that this question was answered in the affirmative or the negative and nothing to indicate that the jurors agreed to vote in accordance with the suggestion, if it was a suggestion. . . . The record does not support appellants' contention that the verdicts were decided by lot and by means other than the fair expression of opinion on the part of the jurors." (Id. at p. 451.)
A similar result was reached in People v. Sherman (1950) 97 Cal.App.2d 245, where the defendant presented an affidavit suggesting the jurors participated in vote switching. The appellate court affirmed the trial court's denial of the new trial motion, rejecting the defendant's attempt to challenge the general rule that a juror may not impeach his or her own verdict by characterizing the vote switching as verdict by lot or chance. (Id. at pp. 256-257.)
A case postdating Evidence Code section 1150 that has some similarity to this one is People v. Cox (1991) 53 Cal.3d 618 (Cox). There, the defendant offered to prove, through juror testimony, that (among other things) " '[a]t one point the jury was hung seven for death and five for life; and one of the jurors for death told the life jurors that if they held out the jury would be locked up for three weeks; and this influenced some of the jurors to change their votes.' " (Id. at p. 693.) The Supreme Court held: "[W]e must reject the allegations of misconduct predicated on the . . . expressed desire of some jurors to resolve the penalty and avoid prolonged deliberations, to the extent they clearly implicate 'fellow jurors' mental processes or reasons for assent or dissent.' " (Id. at pp. 694-695, quoting People v. Hutchinson, supra, 71 Cal.2d at p. 350.) "[W]hile the conduct of jurors disregarding an agreement on smoking or complaining about the pace of deliberations may be scrutinized, the effect of this conduct on subsequent votes may not be. When we exclude the latter, the former, standing alone, does not implicate juror misconduct; nor does the record otherwise demonstrate that some members of the jury were prevented from freely expressing their views because of these two circumstances." (Cox, supra, at p. 695.)
Defendant urges that in People v. Guzman (1977) 66 Cal.App.3d 549, the appellate court denounced vote switching as misconduct. In Guzman, a rogue juror attempted to barter his vote. Although other jurors immediately complained to the trial judge, the rogue juror was allowed to remain impaneled. He proceeded to harangue and taunt his fellow jurors for two more days before he was discharged. Under the circumstances, the People conceded that the juror's conduct in proposing that the jury barter an acquittal of a codefendant for the defendant's conviction constituted misconduct, and the appellate court reversed the trial court's denial of the defendant's new trial motion. (Id. at pp. 552-556, 560-561.)
Although defendant attempts to cast the Guzman court's decision as a blanket condemnation of vote switching as automatic misconduct, the jury in Guzman complained of the conduct immediately and the trial court mishandled the investigation. The appellate court did not find, based on juror affidavits after the verdict, that vote bartering or switching automatically constitutes misconduct.
SUBSTANTIAL EVIDENCE FELONY VANDALISM
Defendant contends that no substantial evidence supports that the damage to Pena's car reached the $400 felony threshold. He claims that the jury "was asked to speculate" on the amount of damage. There is no merit to this point.
Pena testified that all her tires were flattened and she had them repaired for "200 bucks." She added that she had not yet repaired the metal work on her quarter panels, front bumper, or front hood area because she did not have the money. But she estimated that it would cost more than $500 to repair the metal work. Pictures of the damaged car were in evidence. Thus, Pena spent $200 and estimated a further expense of $500. The jury saw the damage. Most people have a general idea of what automobile repair costs. Moreover, the jury could have found that the felony threshold had been reached even had they discounted Pena's opinion of the metal work damage by $300. Defendant was free to argue that Pena's opinion should not be credited because it was not substantiated by a professional estimate or was contradicted by the depicted damage.
JUVENILE ADJUDICATION AS A STRIKE
Defendant argues that the trial court's use of his juvenile adjudication as a strike to enhance his sentence violates his rights to due process and jury trial under the federal Constitution. He acknowledges that we are bound to reject the claim under People v. Nguyen (2009) 46 Cal.4th 1007.
CUMULATIVE ERROR
Defendant argues that the cumulative effect of the asserted errors deprived him of his right to due process under the federal Constitution. The California Supreme Court has instructed that "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) Since we have rejected defendant's claims of error, there is no occasion to evaluate cumulative error.
DISPOSITION
The judgment is affirmed.
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Premo, J.
I CONCUR:
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Elia, J.
RUSHING, P.J., Concurring and Dissenting
While I concur with the majority on most of the issues in this case, I find myself constrained to respectfully dissent from the holding that the trial court did not err by failing to give a unanimity instruction.
The case epitomizes the danger a unanimity instruction is designed to avert. The jury heard evidence of a great many threatening remarks made by defendant over a considerable period of time to several different people. On the instructions this jury received, each juror was welcome to find that one of these many remarks satisfied all elements of the charged offense, with no two jurors settling on the same remark. Such a patchwork verdict is constitutionally impermissible.
The majority concludes that the danger addressed by the instruction was averted by a prosecutorial election to rely on a single act. This conclusion depends on remarks by the prosecutor that I find wholly insufficient to the purpose for which they are cited.At best they can be "parsed" to show a primary reliance on defendant's telephonic comments as recorded by police officers after their arrival. (See People v. Melhado (1998) 60 Cal.App.4th 1529, 1536.) But primary reliance is not exclusive reliance. The rationale for accepting a prosecutorial election in lieu of a unanimity instruction is that where the state explicitly and unequivocally rests its case on a single specified act, the danger of a patchwork verdict is largely eliminated. But the prosecutor's argument here did no more than emphasize the one act he thought had been most clearly demonstrated. Since the emphasized remarks had been recorded, their making could not plausibly be disputed. But as defendant notes, the recorded statements had a serious weakness as a ground for conviction, in that the jury might well wonder how they could have engendered the requisite sustained fear in the victim, who was in the company of police officers when she received them.
Indeed, after defendant argued strenuously in his opening brief that there was no effective prosecutorial election, respondent ignored the point, defending the conviction instead on a highly doubtful ground that the majority has, I think for good reason, declined to embrace. Based on respondent's silence, defendant argued that respondent had conceded the absence of an effective election. (Citing People v. Bouzas (1991) 53 Cal.3d 467, 480.) The majority, however, declines to accept respondent's "apparent concession." (Maj. Opn. at p. 9, fn. 2.) A reviewing court undoubtedly has the power to reject an improvident or legally unsound concession, but in my view that power is ill used here, where in all likelihood the concession reflects not " 'poor preparation' " or " 'inadequate research' " (ibid., quoting People v. Thompson (1990) 221 Cal.App.3d 923, 934), but a professional judgment by the state's attorneys that the facts of the case simply do not show an effective prosecutorial election. Since I share that opinion, I would accept respondent's tacit concession.
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Given this context, the question for us should be whether the cited prosecutorial argument so unmistakably committed the prosecutor to the recorded remarks that the jury necessarily based its conviction on them, or whether instead it left jurors free to examine other potentially culpable acts and thereby take impermissibly divergent paths to a conviction. It seems plain to me that the latter option remained open to the jury. In other words, I cannot accept the majority's conclusion that the prosecutor "clearly and directly informed the jury" that he was relying only on the recorded threat to establish the actus reus in this case.
Nor can I join the majority in dismissing defendant's argument that the court compounded the danger of a patchwork verdict by directly alluding to the possibility that the unrecorded statements could "constitute the threat in violation of Penal Code section 422 in Count 1 or Count 6." The majority "reconcile[s]" this instruction with the premise of an effective election by observing that the instruction preceded the argument in which the election was supposedly made, and that the court told the jury to disregard superfluous instructions. But the question is not whether the court should have given this instruction or whether the instruction itself was prejudicial. The question is whether it substantially contributed to the danger that some jurors would convict based on the recorded statements, while others based their guilty verdict on the unrecorded ones. The court's invitation to treat the unrecorded statements as the operative "threat" was much more direct than the prosecutor's "election" to rely only on the recorded statements. I find it highly unlikely that the jury in fact felt constrained by the prosecutor's remarks. I would reverse the conviction on Count 1.
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RUSHING, P.J.