Opinion
E071554
09-06-2019
THE PEOPLE, Plaintiff and Respondent, v. MARK JOSEPH CORATHERS, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1701045) OPINION APPEAL from the Superior Court of Riverside County. Chad W. Firetag, Judge. Affirmed. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Mark Joseph Corathers, was tried by a jury and convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and making a criminal threat (§ 422). Defendant appealed.
All further statutory references are to the Penal Code.
On appeal, defendant argues the trial court erred by failing to give a unanimity instruction as to the criminal threat charge and therefore defendant's conviction on that charge must be reversed. We affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
On August 10, 2017, defendant's brother came home to find defendant in his home. Defendant and his brother had a "topsy-turvy" relationship, and defendant's brother had previously told defendant that he was not allowed in his brother's house. Defendant and his brother spoke for about 20 minutes, culminating in an argument. This argument turned physical when defendant grabbed his brother's arm and his brother punched defendant in the face. Defendant's brother eventually pushed defendant out of the house.
Later that same day, as defendant's brother drove to the store, he saw defendant on the opposite side of the street, on a bicycle, peddling directly for his brother's car and trying to hit the car with his bicycle. Defendant was yelling at his brother and seemed "very, very, very angry." Defendant's brother pulled into the parking lot of a fast food restaurant and got out of his car. At that point, defendant was across the street at a bus stop.
Defendant then began searching in his backpack. Defendant extracted a butcher's knife and approached his brother. He told his brother that he was going to "chop [his brother's] fucking head off." Once he got within range, defendant slashed at his brother with the knife. Defendant's brother raised his hands to defend himself, but defendant continued to approach while slashing at his brother. Eventually, defendant hit his brother's upraised hand with the knife, cutting his brother's finger.
At that point defendant's brother took his phone out to call the police, and defendant retreated into the fast food restaurant. Defendant hid the knife inside the restaurant under a seat cushion. At some point while his brother was on the phone with the police, defendant exited the restaurant and continued to threaten his brother. According to defendant's brother, defendant was "calling [him] nasty names" and saying "that he was going to chop [his] freaking head off."
The police arrived and arrested defendant while other first responders treated his brother.
The Riverside County District Attorney charged defendant in an information with assault with a deadly weapon (§ 245, subd. (a)(1); count 1) and making a criminal threat (§ 422; count 2). The information also alleged that defendant personally used a deadly and dangerous weapon in the commission of the criminal threat charge. (§ 12022, subd. (b)(1).)
At trial, defendant argued he was acting in self-defense at the time of all charged offenses.
After trial, a jury convicted defendant on all charges and found true the deadly weapon allegation. Defendant timely appealed.
III. DISCUSSION
Defendant argues that the trial court erred by failing to give a jury instruction on unanimity because there were at least two discrete threats. We disagree.
"'[A]ssertions of instructional error are reviewed de novo.'" (People v. Hernandez (2013) 217 Cal.App.4th 559, 568, quoting People v. Shaw (2002) 97 Cal.App.4th 833, 838.) "Whether or not the trial court should have given a 'particular instruction in any particular case entails the resolution of a mixed question of law and fact,' which is 'predominantly legal.' [Citation.] As such, it should be examined without deference." (People v. Hernandez, supra, at p. 568.)
California's "Constitution requires that each individual juror be convinced, beyond a reasonable doubt, that the defendant committed the specific offense he is charged with." (People v. Hernandez, supra, 217 Cal.App.4th at p. 569.) "This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.'" (People v. Russo (2001) 25 Cal.4th 1124, 1132, quoting People v. Sutherland (1993) 17 Cal.App.4th 602, 612.) "'The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.'" (People v. Russo, supra, at p. 1132.)
Thus "[w]hen a defendant is charged with a single offense, but there is proof of several acts, any one of which could support a conviction, either the prosecution must select the specific act relied upon to prove the charge, or the jury must be instructed that all the jurors must agree that the defendant committed the same act or acts." (People v. Mayer (2003) 108 Cal.App.4th 403, 418.) When the prosecutor does not make an election "[t]he unanimity instruction must be given sua sponte, even in the absence of a defense request to give the instruction." (People v. Hernandez, supra, 217 Cal.App.4th at p. 569.)
It is undisputed that the trial court did not give a unanimity instruction in this case. However "'no unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct. "The 'continuous conduct' rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them." [Citations.]'" (People v. Percelle (2005) 126 Cal.App.4th 164, 181, quoting People v. Dieguez (2001) 89 Cal.App.4th 266, 275.)
Defendant's conduct here falls within this continuous conduct exception. Defendant first threatened to cut defendant's head off in the parking lot outside the fast food restaurant, then retreated inside once his brother began calling the police. Thereafter defendant was "in and out" of the restaurant. Defendant's brother testified that he began calling 911 immediately after being cut, and both the transcript of that call and defendant's brother's testimony indicate that defendant's threats continued during that phone call. Indeed, defendant continued to use the exact same threatening language both during and after the parking lot confrontation, namely, "that he was going to chop [his brother's] freaking head off." The record thus indicates that defendant's threats were roughly continuous and identical from the first confrontation through the last.
Even if there was a significant time gap between threats, defendant himself admits that the longest it could have been was 20 minutes. Even assuming the gap was this long, other courts have held that gaps as long as an hour or more between separate acts may still qualify under the continuous conduct exception. (People v. Percelle, supra, 126 Cal.App.4th at p. 182 [finding unanimity instruction unnecessary where the defendant attempted to purchase cigarettes with a fraudulent credit card, left, returned over an hour later to attempt again, and offered the same defense for both actions].) Because defendant's threats were identical and only briefly interrupted by his retreat into the restaurant, there was no reasonable basis for the jury to distinguish between them. Moreover, because defendant's defense to his entire course of conduct was the same—namely, that he acted in self-defense—a unanimity instruction was not necessary in this case.
Defendant argues that the continuous conduct exception does not apply where the alleged discrete actions are criminal threats. In support of this argument, defendant cites People v. Salvato (1991) 234 Cal.App.3d 872 (Salvato). However, that case is distinguishable. In Salvato, the court noted that the continuous conduct exception "'arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction . . . . [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time. [Citation.]'" (Id. at p. 882.) Salvato only concerns the second of these two contexts. The question before the court in Salvato was whether the criminal threat statute itself "contemplates a continuing course of conduct," not whether certain acts punishable under section 422 might nevertheless be closely connected enough to qualify under the exception.
Therefore, Salvato's conclusion that "section 422 does not come within the continuous course of conduct exception," only means that section 422 does not automatically fall under the exception because it does not require continuous conduct. (Salvato, supra, 234 Cal.App.3d at p. 883.) Salvato does not prohibit applying the continuous conduct exception to a violation of section 422 where the particular facts of the case show that the acts are "so closely connected that they form part of one and the same transaction," as is the case here. (Salvato, supra, at p. 882.)
Further, even if the alleged discrete acts were not continuous, the record reflects that the People did elect a specific act. Though the People did not make any formal election before the jury, the record shows that the People only sought conviction for the initial confrontation. In closing argument, the People focused entirely on the threats defendant made while he approached with the knife. For instance, in discussing the third element—whether defendant intended for his statement to be understood as a threat—the People argued defendant "had to intend that the statement be understood as a threat . . . because he's going at his brother with a knife . . . ." When discussing the fourth element—that the threat was clear, immediate, unconditional and specific—the People argued defendant "told [his brother] exactly what he's going to do as he's coming at [his brother] with a knife . . . ." For the final element, which required the People to prove defendant's brother's fear was reasonable, the People stated that "anyone in that situation where someone is coming at him with a knife is pretty reasonable to be scared . . . ." In each of these instances, the People referenced the threats made while defendant was approaching his brother with the knife, and did not reference any subsequent threats after defendant hid the knife in the restaurant.
The only time the People addressed any other threats was in their analysis of the fifth element, which required them to prove that defendant's brother was in sustained fear for his safety. (CALCRIM No. 1300.) But they did so only to point out that at the time of these additional threats, defendant's brother was still in fear from defendant's original threats. The People pointed out that "when the defendant came back outside of [the restaurant]," while his brother was on the phone with 911, his brother's voice "changed in tone and in pace," and that "[y]ou could tell that [defendant's brother] was in fear again because he didn't know where the knife was." This mention of defendant's conduct after the initial threats was only used to bolster the argument that defendant's brother was still in fear from the initial threats at the time of defendant's renewed threats. At no point do the People rely on defendant's alleged subsequent threat or threats as the basis for a conviction under section 422. Therefore, we conclude that a unanimity instruction was not required and the trial court did not err when it chose not to give such an instruction.
Finally, even if the court erred in failing to give a unanimity instruction, any error was harmless because the jury's finding that the weapon use allegation was true necessarily means they based their decision on the initial threats. Failure to give a unanimity instruction is reviewed under a harmless error standard, though there is a split amongst the appellate courts as to which harmless error standard applies. (People v. Hernandez, supra, 217 Cal.App.4th at p. 577; see, e.g., People v. Matute (2002) 103 Cal.App.4th 1437, 1448 [noting conflicting authorities].) This court and the majority of other appellate courts apply the standard articulated in Chapman v. California (1967) 386 U.S. 18. (People v. Hernandez, supra, at p. 577.) Under this standard, "'[w]e must inquire whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite [elements of the crime] independently of the force of the . . . misinstruction. [Citation.]'" (People v. Wolfe (2003) 114 Cal.App.4th 177, 188, quoting People v. Harris (1994) 9 Cal.4th 407, 429.)
The jury, finding the weapon use allegation true, establishes that any error was harmless. To find the weapon use allegation as to count 2 true, the jury was instructed that it must find "the People have proved the additional allegation that the defendant personally used a deadly or dangerous weapon during the commission . . . of that crime." (CALCRIM No. 3145.) This means that in order for the jury to find this allegation true, the jury had to unanimously conclude that defendant used a weapon while committing the underlying criminal threat for which he was convicted. Defendant did not have the knife, and did not use the knife, any time after he came back out of the restaurant. The only time defendant used the knife—or any weapon—while making a criminal threat was during the first confrontation, before he retreated inside the restaurant. Therefore, the jury must have based its guilty verdict on defendant's threat while he was holding the knife, and not on any subsequent threat or threats. Given this evidence, any error in failing to provide a unanimity instruction was harmless beyond a reasonable doubt.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. MILLER
J.