Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF131278, Bernard Schwartz, Judge. Reversed.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI, Acting P.J.
Defendant Douglas Mark Thurber was charged with making criminal threats (Pen. Code, § 422) to two female victims — Charla Allen and Michelle Velasquez. Allen had numerous phone calls with defendant while he was incarcerated, including some in which she made statements to the effect that she had not taken his threats seriously and was not actually afraid. Accordingly, the jury found defendant not guilty on the count relating to Allen.
Velasquez did not testify at trial; over defendant’s objection, however, a tape of her 911 call was admitted into evidence. The jury found defendant guilty on the count relating to Velasquez.
One 5-year serious felony prior conviction enhancement (Pen. Code, § 667, subd. (a)) and one “strike” prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) were found true. Defendant was sentenced to a total of nine years in prison.
Defendant now contends:
1. The 911 call was not properly authenticated.
2. The admission of the 911 call violated the confrontation clause, because (a) the call was testimonial and (b) the prosecution failed to establish that Velasquez was unavailable to testify at trial.
3. The trial court erred by failing to give a unanimity instruction. (E.g., CALCRIM No. 3500.)
4. There was insufficient evidence to support the trial court’s true findings on the prior conviction allegations.
We agree that the tape of the 911 call was not properly authenticated. Moreover, we conclude that the error was prejudicial and requires the reversal of defendant’s conviction. For the guidance of the parties and trial court on remand, we further hold that the admission of the 911 call did not violate the confrontation clause and that the trial court was not required to give a unanimity instruction. Finally, we hold that there was sufficient evidence to support the true findings on the priors.
I
FACTUAL BACKGROUND
A. The Testimony of Charla Allen.
Charla Allen lived in Corona with her long-time boyfriend. They also had a roommate, Michelle Velasquez.
Meanwhile, Allen was having an “affair” with defendant. They would hang out together and use methamphetamine. They had had “sexual contact” (not intercourse) once or twice.
Allen admitted testifying falsely at the preliminary hearing that she and defendant “were just friends.”
Allen had a Mercedes that she was in the process of buying from defendant’s brother. On June 9, 2006, defendant spoke to her on the phone and asked her to give him a ride. Around 11:00 a.m., he showed up at her house. He knocked on the door “pretty aggressively.” He then circled the house, “trying the windows” and looking inside.
Allen admitted that it was registered in defendant’s name, but she testified that this had been done solely as a matter of convenience.
When Allen finally opened the door, defendant demanded the keys to the Mercedes. She refused. An argument followed. Finally, Allen decided to give defendant the car, “to get rid of him.” She went to “get [her] stuff out” of the car. She asked Velasquez to help her.
At that point, defendant turned to Velasquez and said, “I’m going to kill you first”; he then turned to Allen and added, “and then I’ll kill you.” Allen was afraid. She believed that defendant “meant what he said.” Velasquez “took off.” Allen was not sure where she went. Later, Velasquez told Allen that she had been in back, hiding in Allen’s boyfriend’s truck. While defendant was still at the house, the police arrived.
At the preliminary hearing, however, Allen agreed that “[she] didn’t think that [she] was in imminent danger of him actually trying to kill [her] at that point....”
When Allen saw Velasquez again, Velasquez was “[s]hook up” and crying. Allen had never seen Velasquez afraid before; usually, she was a “bully” and a “ruffian.”
B. The Tape of the 911 Call.
The tape of a 911 call was played for the jury. Allen identified Velasquez as the caller, based on her voice.
We have reviewed a transcript of the tape. The parties have not had the tape itself transmitted to us. (See Cal. Rules of Court, rule 8.224.)
In the call, Velasquez reported that defendant was “threatening to kill me and my friend.” In response to the operator’s questions, Velasquez identified herself, gave her location, and described defendant. She said that defendant seemed “high” and “might have been drinking.” She also said that Allen was “in the house with him.” She reported that they were fighting over a Mercedes.
Velasquez stated, “[H]e... sa[id] that if I went any close[r] to [the] car or him... that he was gonna take me out. And then he started [c]hoking me like, it was almost like he wanted to get close to me just to have a reason to hit me....” After that, she said, she had locked herself in a truck.
Velasquez said, “He’s getting really loud right now.” The operator urged her, “[J]ust stay on the phone with me.” She exclaimed, “I think he’s looking for me.” Once again, the operator urged her to stay on the phone. Velasquez then volunteered, “I’m not easily scared of guys but he really scares me. He’s been harassing us all morning and we stopped answering the phone and so he just showed up.”
Suddenly, Velasquez exclaimed, “Oh my God[,] they’re yelling really [unintelligible].” Likewise, she burst out, “Oh God[,] he [ ] I hope he doesn’t hit her.” Shortly after that, she said, “[O]h God[,] he’s looking for me....” She added, “I don’t want him to find me.” Yet again, the operator urged her to stay on the phone.
Velasquez said she was shaking. She said she saw Allen opening the gate and defendant standing by her, but then they went behind a car. Moments later, officers arrived. The operator told Velasquez to cooperate with the officers, and the conversation ended.
C. The Testimony of Deputy Richard Naccarato.
Deputy Richard Naccarato responded to the 911 call. As he got out of his car, he could hear defendant yelling inside the house.
He spoke to Velasquez, who was the person who had called 911. She was “visibly shaken” and scared; she was flushed and had been crying. She told him that defendant had said, “Don’t go near my car, or I’ll take you out right now[.]” Allen, too, had been crying, and she was shaking; Deputy Naccarato had to tell her to calm down because he could not understand her clearly.
D. Allen’s Taped Phone Calls with Defendant.
Allen had almost daily telephone conversations with defendant while he was in jail. Some of these calls were taped and played for the jury.
In them, Allen told defendant she loved him. She also said, “... I was mad..., but I wasn’t scared of you at that point....” She told defendant he should not take a plea bargain because “you’re not guilty.” When defendant said he “didn’t do it,” she agreed.
At trial, Allen claimed she did not mean what she said; she was just “trying to make [defendant] happy,” so “he wouldn’t come after me.”
II
AUTHENTICATION OF THE 911 CALL
Defendant contends that the prosecution failed to authenticate the tape of Velasquez’s 911 call.
A. Additional Factual and Procedural Background.
During a pretrial discussion of the 911 call, there was this exchange:
“[PROSECUTOR]: Additionally, as to the 911 tape, can we authenticate it through voice recognition on the part of... Charla Allen?...
“[DEFENSE COUNSEL]: I — she’s not a party to the call, your Honor. [¶]... [¶]
“THE COURT: Right. I understand. I mean, but she comes in and says, I know her, that’s her voice....
“[PROSECUTOR]: It’s self-authenticating also, beyond that, in the sense that the caller spells her name, says who she is.
“THE COURT:... So as long as a voice is authenticated as to who that is that’s speaking, I think the tape then speaks for itself as to what it’s about.”
Later, before Allen testified, defense counsel renewed his objection, arguing again that Allen could not authenticate the tape because she had not been a party to the call, but the trial court overruled the objection again.
B. Analysis.
“‘To be admissible in evidence, an audio or video recording must be authenticated. [Citations.] A... recording is authenticated by testimony or other evidence “that it accurately depicts what it purports to show.” [Citation.]’ [Citation.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 952; accord, People v. Mayfield (1997) 14 Cal.4th 668, 747 [videotape]; People v. Bowley (1963) 59 Cal.2d 855, 859 [film].) We review the trial court’s ruling for abuse of discretion. (See Joint Holdings & Trading Co. v. First Union Nat. Bk. of North Carolina (1975) 50 Cal.App.3d 159, 166.)
Defendant relies on O’Laskey v. Sortino (1990) 224 Cal.App.3d 241, disapproved on other grounds in Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768, 774-776 & fn. 4.) We agree that it is virtually on point.
In O’Laskey, an investigator had surreptitiously taped a conversation between himself and the defendant, Sortino, in which Sortino made a damaging admission. (O’Laskey v. Sortino, supra, 224 Cal.App.3d at p. 244 & fn. 2.) The plaintiff, O’Laskey, sought to authenticate a transcript of the tape by submitting a declaration by his attorney to the effect that the attorney had received the tape from the investigator, listened to it, and recognized Sortino’s voice. The attorney also testified that the transcript accurately reflected the tape. (Id. at p. 249.)
The appellate court held, as a matter of law, that the tape, and hence the transcript, had not been properly authenticated: “Without authentication of the tape, the transcript is irrelevant. [Citations.] [¶] There is no way to know whether the tape is what O’Laskey claims it is. No declaration or other sworn testimony of the investigator was offered to describe when, where, how or by whom the tape was made. [Citations.]... Similarly, there is nothing in the transcript to identify the investigator as the second party to the conversation, and although O’Laskey’s attorney testified that he recognized Sortino’s voice on the tape, counsel’s declaration does not say whether he ever talked to the investigator or that he recognized that voice on the tape.
“Furthermore, O’Laskey failed to introduce any evidence regarding the completeness or accuracy of the tape. [Citation.] The statement of O’Laskey’s attorney in his declaration that ‘I have listened to the tape, and the transcript is an accurate written record of the conversation contained on the tape’ addresses the accuracy of the transcript, not the accuracy or completeness of the tape. O’Laskey’s attorney cannot know the true and complete extent of the conversation — and the investigator is the only person competent to testify whether the tape had been altered or edited or whether it included the entire conversation.” (O’Laskey v. Sortino, supra, 224 Cal.App.3d at pp. 249-250.)
Here, just as in O’Laskey, a witness’s testimony that he or she recognizes the voice of one of the participants in a conversation is insufficient to authenticate a tape of that conversation. There must be, in addition, some evidence that the tape accurately reflects what was said.
We recognize that the content of the writing itself may be considered. (People v. Gibson (2001) 90 Cal.App.4th 371, 383; People v. Olguin (1994) 31 Cal.App.4th 1355, 1373; see also Evid. Code, § 1421.) For example, Gibson held that two manuscripts found in the defendant’s lodgings were sufficiently authenticated because the author’s name was the same as one of the defendant’s aliases, they discussed the business of prostitution, and other evidence showed that the defendant was operating a prostitution business. (Gibson, at p. 383.) A recording, however, is distinguishable from an original written document, because it purports to be a record of separate statements, acts, or events; hence, it presents an additional issue regarding its accuracy.
Here, at least arguably, once Velasquez’s voice was authenticated, the content of the tape could have been used to show that Velasquez was speaking to a 911 operator. The content of the tape alone, however, could not show that the tape accurately reflected what Velasquez and the 911 operator said. For example, the statements could have been made in a different order, or other significant statements could have been cut; there would be no way to tell. Even though the probability of this was low, the authentication requirement demanded that the People make some minimal showing that this was not the case.
People v. Fonville (1973) 35 Cal.App.3d 693 provides a nice example of how minimal, yet how necessary, this showing may be. There, the prosecution introduced the tape of a jailhouse conversation between the defendant and his uncle. In it, the defendant said he had told the police he did not remember the crime because he “‘was tanked up on pills....’” He had taken “‘12 or 14 reds....’” Actually, though, he did remember at least the “‘first part,’” of it, though not what happened “‘after we left the cafe....’” (Id. at pp. 706-707.)
The evidence showed that jail officials had been asked to record the conversation. The defendant and his uncle were assigned to phone No. 30. “The recording room” was then told to start recording the conversation on phone No. 30. One Ronald Goodwin proceeded to record the conversation. Goodwin, however, did not testify; there was no other testimony that the tape was accurate or that the voices were those of the defendant and his uncle. (People v. Fonville, supra, 35 Cal.App.3d at p. 708.)
The court noted that “... ‘[a] writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing.’ [¶] Applying this principle to the contents of the recorded conversation, it would appear that the statements regarding what had been denied to the police, what had been told to the police regarding the declarant’s state of intoxication, quantity of intoxicants taken, and when the decedent had left the café, indicate that it was in fact appellant whose words were on the recording. They are matters that are unlikely to have been known by anyone other than the appellant. In effect, the conversation proves itself.” (People v. Fonville, supra, 35 Cal.App.3d at p. 709.) The court also noted that a second tape featuring the defendant’s voice was also in evidence, so the jury itself could recognize it. It concluded “that from the evidence surrounding the introduction of the tape, the contents of the conversation recorded thereon and the opportunity for the judge and the jury to compare appellant’s voice on the two tapes, a sufficient foundation was established.” (Ibid., italics added.)
To summarize, then, in Fonville, while no witness testified in so many words that the tape was accurate, there was at least evidence about the circumstances under which the tape was made; from this, it was reasonably inferable that the tape was accurate. Precisely such evidence is lacking in this case.
In a footnote, O’Laskey held that the contents of the tape in the case before it were insufficient to authenticate the tape; it distinguished Fonville on this point. We agree with this conclusion, but we do not agree with the court’s reasoning.
We turn, then, to whether the error was prejudicial. “‘Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.’ [Citation.]” (People v. Watson (2008) 43 Cal.4th 652, 686.) ‘““[A] ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” [Citation.]’ [Citation.]” (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050.)
“The following elements must be proved to show the making of a criminal threat[:] ‘(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,” (2) that the defendant made the threat “with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out,” (3) that the threat — which may be “made verbally, in writing, or by means of an electronic communication device” — was “on its face and under the circumstances in which it [was] made,... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,” (4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family’s safety,” and (5) that the threatened person’s fear was “reasonabl[e]” under the circumstances. [Citation.]’” (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605, italics omitted, fn. omitted; see also Pen. Code, § 422.)
Here, the 911 call was the strongest evidence that Velasquez was in sustained fear. Even on the cold transcript, she comes across as panic-stricken. She exclaimed, “[O]h God[,] he’s looking for me” and “I don’t want him to find me.” She also said she was shaking. The operator had to ask her to stay on the phone.
Admittedly, Deputy Naccarato testified that Velasquez was flushed, had been crying, and appeared scared. Allen confirmed that Velasquez was “[s]hook up” and crying and appeared afraid. Allen, however, was thoroughly impeached; the jury evidently disbelieved much of her testimony. Deputy Naccarato admitted that red, watery eyes and a flushed face could be symptoms of being “under the influence of alcohol or another substance[.]” He saw no objective indications that she was under the influence of methamphetamine, but he agreed that, without a physical test, he could not conclusively say that she was not. He also did not testify that she was not under the influence of alcohol. Finally, even if the jury believed that Velasquez was crying, upset, or scared, it could have put this down to the stress of having to witness an angry domestic dispute.
The 911 call was also crucial evidence that defendant made an unequivocal threat of death to Velasquez. Leaving aside the 911 tape, Allen and Velasquez gave significantly different versions of the words defendant used. According to Allen, he said to both women, “I’m going to kill you first, and then I’ll kill you.” As we already noted, however, Allen was thoroughly impeached. According to Velasquez, he said, “Don’t go near my car, or I’ll take you out right now[.]” From the fact that Velasquez mentioned only the latter threat to Deputy Naccarato, it was fairly inferable that either (1) defendant did not make the threat to kill that Allen reported, (2) Velasquez did not hear it, or (3) it did not cause her sustained fear. The threat that she did choose to mention was conditional and thus not necessarily unequivocal. Moreover, it was not necessarily a threat of death or great bodily harm. Defense counsel made both points strongly in closing argument.
By contrast, in the 911 call, when the operator said, “[S]tate your emergency,” Velasquez responded, “[I]t’s this guy here and... he’s threatening to kill me and my friend.” Based on the 911 call, the prosecutor was able to argue that defendant made a single unequivocal threat to kill both women: “[B]oth of them were there when Charla heard her threat. And if you go into the prelim statements,... Michelle’s statement doesn’t say anything about it being conditioned on going into the car.... She just said, ‘He threatened to kill us. He threatened to hurt me.’ That’s all she says. She doesn’t say, he threatened to kill me or hurt me if I went to the car.... There’s no condition to that.”
This referred to the preliminary portion of the 911 tape; Velasquez did not testify at the preliminary hearing.
In sum, if the 911 call had been excluded, as it should have been, it is significantly more likely that the jury would have had a reasonable doubt as to whether defendant’s threat to Velasquez was unconditional, whether it was a threat of death or great bodily harm, and whether it caused her sustained fear. We conclude that there is at least a reasonable probability that the jury would have found defendant not guilty as to Velasquez.
III
THE APPLICATION OF THE CONFRONTATION CLAUSE TO THE 911 CALL
Defendant also contends that the admission of Velasquez’s 911 call violated the confrontation clause. Although we have already held that the 911 call should not have been admitted because it was not properly authenticated (see part II, ante), it seems reasonably likely that, on remand, the People may be able to call another witness (or witnesses) who can authenticate it. If the call were wholly inadmissible under the confrontation clause, however, there would be no point in doing so. Accordingly, we address this contention for the guidance of the parties and the trial court on remand. (See People v. Superior Court (Zamudio)(2000) 23 Cal.4th 183, 200.)
A. Additional Factual and Procedural Background.
Before trial, defense counsel objected to the 911 call. The prosecutor argued that the call was admissible under the business records exception to the hearsay rule. Defense counsel responded, “[N]otwithstanding any hearsay exception in the Evidence Code[,]... Ms. Velasquez’s unavailability... violates our Sixth Amendment rights to confrontation....”
Defense counsel also argued that, even assuming some portions of the call were not testimonial for confrontation clause purposes, other portions were testimonial: “[T]here’s also substantial discussions about statements that happened prior to what Ms. Velasquez was viewing at the time. [¶]... [Also,] she stated she was at the back of the house at this point, and [hence] in... a relative position of safety.”
The trial court overruled the objection (although it did order that references to defendant’s criminal history be redacted). It then proceeded to hold a hearing under Evidence Code section 402 with respect to whether the prosecution had used due diligence to secure Velasquez’s attendance at trial. At the end of the hearing, it found due diligence.
B. Analysis.
The confrontation clause bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Crawford v. Washington (2004) 541 U.S. 36, 53-54 [124 S.Ct. 1354, 158 L.Ed.2d 177].)
Velasquez did not appear at trial. Moreover, defendant had had no prior opportunity to cross-examine her, at the preliminary hearing or otherwise. Defendant therefore contends that her 911 call was testimonial. Separately and alternatively, he also contends that there was insufficient evidence that she was unavailable.
In Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266, 165 L.Ed.2d 224], the United States Supreme Court took up the question of whether a 911 call was testimonial. It stated the following test: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Id. at p. 822, fn. omitted.)
It then held that, under this test, at least some portions of the 911 call in the case before it were not testimonial. It noted four factors that distinguished the 911 call from a classic interrogation. First, the caller “was speaking about events as they were actually happening, rather than ‘describ[ing] past events,’ [citation].” (Davis v. Washington, supra, 547 U.S. at p. 827.) Second, the 911 call “was plainly a call for help against bona fide physical threat,” rather than “a narrative report of a crime absent any imminent danger....” (Ibid.) Third, “the nature of what was asked and answered... was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn... what had happened in the past.” (Ibid.) Fourth, the 911 call lacked “formality”; the caller’s “frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe.” (Ibid.) The court concluded that the “primary purpose” of the 911 call “was to enable police assistance to meet an ongoing emergency. [The caller] simply was not acting as a witness; she was not testifying.” (Id. at p. 828.)
The court did caution that a 911 call “which begins as an interrogation to determine the need for emergency assistance can[]... ‘evolve into testimonial statements,’ [citation] once that purpose has been achieved.” (Davis v. Washington, supra, 547 U.S. at p. 828.) In the case before it, it noted, “[i]t could readily be maintained that” once the defendant left the scene and the emergency apparently ended, the 911 caller’s answers to the operator’s questions became testimonial. (Id. at pp. 828-829.) It did not resolve the issue, however, because the defendant had not challenged the lower court’s holding that the admission of those statements was harmless. (Ibid.)
Here, just as in Davis, there was an ongoing emergency. Velasquez was describing current events, not past events. She kept interrupting the call to express immediate fear. Certainly the call lacked formality. And in general, the operator’s questions were designed to help resolve the present emergency.
Indeed, defendant concedes that “the dispatcher’s interrogation of Ms. Velasquez objectively indicates a purpose to enable police assistance to meet an ongoing emergency.” He argues, however, that “it also simultaneously objectively reflects an interrogation designed to elicit facts to prove that [defendant] committed crimes.” (Italics added.) He does not identify any particular questions that the 911 operator asked that were not reasonably related to the ongoing emergency. Instead, he identifies certain statements by Velasquez that he contends were testimonial. He singles out: “He’s been harassing us all morning....” Velasquez, however, did not say this in response to any particular question by the 911 operator; the latest thing the 911 operator had said was, “Stay on the phone with me.” Rather, Velasquez volunteered it, evidently to explain and to clarify her statement, “I’m not easily scared of guys but he really scares me.” In any case, the events that led up to the threats and the reasons for Velasquez’s fear were matters that a responding officer reasonably would want to know.
Likewise, defendant identifies as testimonial Velasquez’s statement that defendant was “a really controlling person.... And he thinks I’m the bad person because I’m her friend, but I, I’m not trying to get her to not want to be with him.” Velasquez, however, said this in response to the operator’s question, “What does he want? Do you know what he wants?” Once again, this inquiry was reasonably relevant to help the responding officers do their jobs. In the final analysis, the Supreme Court focused, not on isolated questions, but rather on the “primary purpose” of the conversation; under this test, the 911 call was not testimonial.
Defendant also argues that, at some point during the call, “there ceased to [b]e an ongoing emergency.” This is simply not a tenable view of the call. Velasquez began by stating, “[H]e’s threatening to kill me and my friend.” She said he had not hit Allen, but he had choked her. She said she was hiding in a locked truck. Defendant and Allen were both in the house; defendant was “getting really loud....” According to Velasquez, defendant was “very violent,” “drinking” or “high,” and “totally out of control.” She said, “Oh my God[,] they’re yelling really [unintelligible].” Likewise, she burst out, “Oh God[,] he [ ] I hope he doesn’t hit her.”
When defendant came out of the house, Velasquez was plainly terrified, exclaiming, “[O]h God[,] he’s looking for me....” She added, “I don’t want him to find me.” She said she was shaking. Briefly, she saw Allen opening the gate and defendant standing by her. Almost immediately, however, they went behind a car; she could not see them, but she could hear them (presumably still yelling). Moments later, police officers arrived. There was an ongoing emergency throughout this time.
Because the 911 call was not testimonial, its admission could not violate the confrontation clause. (Davis v. Washington, supra, 547 U.S. at pp. 823-826.) This is true even if the prosecution failed to prove that Velasquez was unavailable. Admittedly, some state-law hearsay exceptions, such as a declaration against interest (Evid. Code, § 1230) and former testimony (Evid. Code, §§ 1290-1292), require unavailability. However, it is not required under the business records exception, on which the prosecution relied (Evid. Code, §§ 1270-1272); moreover, defendant expressly did not object on state-law hearsay grounds. Accordingly, we need not decide whether the prosecution adequately proved that Velasquez was unavailable.
IV
FAILURE TO GIVE A UNANIMITY INSTRUCTION
Defendant contends that the trial court erred by failing to give a unanimity instruction. (E.g., Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 3500.) Once again, although we are reversing on other grounds, we address this contention for the guidance of the parties and the trial court on remand.
“In a criminal case, a jury verdict must be unanimous. [Citations.]... Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.]” (Ibid.)
“‘Neither instruction nor election are required, however, if the case falls within the continuous course of conduct exception,’ which arises ‘when the acts are so closely connected that they form part of one and the same transaction, and thus one offense’ or ‘when... the statute contemplates a continuous course of conduct of a series of acts over a period of time.’ [Citation.]” (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1427.)
Here, as we discussed in part II, ante, there was evidence that defendant may have made two distinct threats against Velasquez. First, Allen reported that he said to both women, “I’m going to kill you first, and then I’ll kill you.” Second, Velasquez reported that he said to her, “Don’t go near my car, or I’ll take you out right now.”
This evidence potentially showed more than one discrete crime. People v. Salvato (1991) 234 Cal.App.3d 872 held that Penal Code section 422 “does not come within the continuous course of conduct exception.” (Salvato, at p. 883.) It explained: “The language of [Penal Code] section 422 focuses on an individual act — a threat — although an effect (fear) is also required. The criminal action is denoted by a verb — ‘threaten’ — which ordinarily refers to an act taken at a particular moment in time rather than as a continuous course. The outcome, instilling of fear in the victim, does not come within the statute unless it is produced by a specific means, the ‘unequivocal, unconditional, immediate, and specific’ threat.” (Ibid.) Accordingly, here, the jury could have found that each separate threat toward Velasquez was a separate crime.
The prosecutor, however, made an election to proceed based solely on the threat to which Allen testified. In closing argument, he took the position that there had been only a single threat, which was the threat to kill both Allen and Velasquez:
“[T]his is the statement that was made by the defendant that Charla indicated that she heard. There was some question yesterday as to whether or not that was what Michelle Velasquez conveyed to the officer when he came up. That was slightly different. Some curse words were missing. But the bottom line is it was the same threat.... [¶]... [¶] His statement was clearly a threat. There is no equivocation in it. ‘I’ll kill you, and then I’ll kill her.’... [¶] They both heard it.”
Defense counsel, in his closing argument, disagreed. He argued that defendant made separate threats to Allen and to Velasquez and that the threat to Velasquez did not qualify as a criminal threat:
“The first question is what’s the threat?... Charla Allen said that Doug Thurber... said, ‘You fucking, fat bitch, I’ll kill you, then I’ll kill her.’... That was a completely different statement, as Deputy Naccarato testified that Michelle Velasquez said.
“What did Michelle Velasquez say? ‘Don’t go near my car, or I’ll take you out right now.’
“Is it clear? It’s far from clear. Remember, it has to be a specific threat of death or great bodily injury. ‘Take you out right now,’ we don’t know what that means. Anything short of death or great bodily injury does not constitute a criminal threat.
“It has to be unconditional. ‘Don’t go near my car,’ that’s an express condition on this alleged threat.
“So based upon Michelle’s statement, it doesn’t even qualify in the realm of criminal threats.”
Accordingly, in his rebuttal argument, the prosecutor once again took the position that there was only a single threat, which was the threat to kill both Allen and Velasquez. Moreover, he essentially conceded that a separate threat to “take [Velasquez] out” if she went near his car would not be a criminal threat:
“[T]hey gave you two separate accounts of the threats. But both of them were there when Charla heard her threat. And if you go into the prelim statements,... Michelle’s statement doesn’t say anything about it being conditioned on going into the car.... There’s no condition to it. She just said, ‘He threatened to kill us. He threatened to hurt me.’ That’s all she says. She doesn’t say, he threatened to kill me or hurt me if I went to the car.... There’s no condition to that.
“And besides, if there was a condition, all she had to do was not do it and the threat goes away.... All she has to do is not go near the car, and apparently, the threat goes away. And if the threat goes away, why does she have to run back to the back of the house and hide in a truck, or call 911? What’s reasonable?”
On this record, the prosecutor acknowledged that the threat that Velasquez reported was too conditional either to be immediate or to instill sustained fear; thus, to find defendant guilty, the jury had to find that he made the threat that Allen reported. Moreover, the jury was given a general unanimity instruction, which stated: “Your verdict on each count must be unanimous. That means in order to return a verdict, all of you must agree to it.” (CALCRIM No. 3550.) The jury would have understood that it had to agree unanimously that defendant made the threat that the prosecutor had elected.
We therefore conclude that the failure to give a unanimity instruction was not error.
V
THE SUFFICIENCY OF THE EVIDENCE THAT
DEFENDANT WAS THE PERSON CONVICTED OF THE PRIORS
Defendant contends that there was insufficient evidence to support the trial court’s finding that he had two prior convictions.
A. Additional Factual and Procedural Background.
The information alleged that, on September 6, 1988, in Orange County, defendant was convicted of robbery (Pen. Code, § 211) and first degree burglary (Pen. Code, §§ 459, 460, subd. (a)). The trial court bifurcated the trial on the priors, and defendant waived a jury trial on them.
At the court trial, the People’s evidence consisted of two exhibits — Exhibit 5 and Exhibit 6.
Exhibit 5 included:
1. A complaint in Orange County Case No. C 68353, charging Douglas Mark Thurber, date of birth August 28, 1963, with multiple counts of robbery and first degree burglary.
2. An information in Orange County Case No. C 68353, charging Douglas Mark Thurber with multiple counts of robbery and first degree burglary.
3. A change of plea form in Orange County Case No. C 68353, dated September 6, 1988, in which Douglas Mark Thurber pleaded guilty to multiple counts of robbery and first degree burglary.
4. A minute order in Orange County Case No. C 68353, also dated September 6, 1988, reciting that Douglas Mark Thurber had pleaded guilty to multiple counts of robbery and first degree burglary and been sentenced.
Exhibit 6 has not been included in the clerk’s transcript nor transmitted to this court. The trial court, however, described it as “a certified document from California Law Enforcement Systems.” The prosecutor described it as “a certified copy of the rap sheet, which indicates that the convictions are listed under the defendant’s name with the same date of birth, and on the same date, and under the same case number.” The court also stated that it included a description — “sex, male; race, white; height, 5-11; weight, 185[,]... eyes, hazel; and hair, brown” — which matched defendant, at least as he might have been 20 years earlier (i.e., not necessarily as to height and weight).
According to the probation report, defendant was a white male, six feet tall, weighing 190 pounds, with green eyes and brown hair.
Defense counsel objected to Exhibit 6 as unauthenticated and as hearsay. The trial court overruled these objections and admitted both exhibits.
Defense counsel then argued that, in the absence of either photographs or fingerprints, there was insufficient evidence that defendant was the person who had suffered the convictions.
The trial court took judicial notice that in this case, when defendant was arraigned, he admitted that his true name was Douglas Mark Thurber and that his true date of birth was August 28, 1963. It then found the priors true.
B. Analysis.
“It has long... been the rule in California, in the absence of countervailing evidence, that identity of person may be presumed, or inferred, from identity of name. [Citations.]” (People v. Mendoza (1986) 183 Cal.App.3d 390, 401.) While this rule might not apply if the defendant’s name is extremely common (see People v. Luckett (1969) 1 Cal.App.3d 248, 253), here defendant’s name is not common — and not markedly more so than other names that have been found to support an inference of identity. (See People v. Rodriguez (2005) 133 Cal.App.4th 545, 555 [Eduardo Tolentino Rodriguez]; People v. Sarnblad (1972) 26 Cal.App.3d 801, 805-806 [Donald Sarnblad].) There is no absolute requirement that the prosecution must introduce other evidence of identity, such as photographs or fingerprints. (Sarnblad, at p. 806.) In any event, here the prosecution also introduced evidence that the Douglas Mark Thurber who suffered the prior convictions had the same birthdate as defendant and the same general description.
Zabasearch.com produces 89 results for a “D. Thurber” living in California, but none for a “Douglas Thurber.” (, as of Dec. 17, 2009.)
Defendant relies on U.S. v. Jackson (2d Cir. 2004) 368 F.3d 59, which held that evidence that one “Aaron Jackson” had been convicted of a felony almost 20 years earlier were insufficient to prove that defendant Aaron L. Jackson was a felon. (Id. at pp. 63-73.) As a decision of an intermediate federal court, Jackson is not binding on us. (People v. Figueroa (1992) 2 Cal.App.4th 1584, 1587-1588.) Moreover, as the court in Jackson frankly acknowledged, the federal courts are split on this issue, with the Fifth and Ninth Circuits coming to the opposite conclusion. (Jackson, at pp. 69-71.)
Even if we were to follow Jackson, the facts here are distinguishable, in two ways. First, there, the court considered the name “Aaron Jackson” to be common. (U.S. v. Jackson, supra, 368 F.3d at p. 63.) As we have already held, we do not consider “Douglas Thurber” to be common, much less “Douglas Mark Thurber.” Second, there, “[t]he government offered no evidence that the two Aaron Jacksons were of the same race, or of similar height, coloring, fingerprint configuration, or even general physical description.” (Id. at pp. 64-65.) The court recognized that “the more two portraits are amplified to include further similarities” — which may include “the same birthday [and] the same coloring of skin, eyes, and hair” — “the more probable it becomes that they refer to the same individual.” (Id. at p. 64.) Here, there were precisely such “further similarities”; in addition to the similarity of names, there was evidence that defendant had the same birth date and the same general description as the person with the prior.
We therefore conclude that there was sufficient evidence to support the trial court’s true findings on the priors.
VI
DISPOSITION
The judgment is reversed.
We concur: GAUT, J., KING, J.
The court stated: “... O’Laskey also contends that the tape is self-authenticating because the conversation refers to matters unlikely to be known to anyone other than Sortino. We do not reach this issue because the conversation does not prove itself — it does not disclose the date of the two-week vacation, the critical fact it was offered to prove. (People v. Fonville (1973) 35 Cal.App.3d 693, 709 [111 Cal.Rptr. 53].)” (O’Laskey v. Sortino, supra, 224 Cal.App.3d at p. 250, fn. 6.)
In Fonville, however, the content that authenticated the conversation (that the defendant told the police he did not remember what happened, that he took 12 to 14 reds, and that the crime happened after he left a café) was not the same as the content that was offered to prove the “critical fact” (that he actually did remember what happened). There is no such requirement. To be self-authenticating, the content need only be something that the purported author of the writing would be uniquely likely to know. Then, once the writing has been authenticated, its other content can be used as substantive evidence.
In our view, the content of the tape in O’Laskey, like the content of the tape in this case, was insufficient to authenticate it because it failed to show that the tape was accurate. Indeed, the same was also true in Fonville: The content of the tape was insufficient to show that it was accurate; hence, the court also relied on the circumstances in which it was made.
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