Opinion
C081934
09-15-2017
THE PEOPLE, Plaintiff and Respondent, v. ALONZO TAYLOR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 15F06215 & 15F02211)
Two different neighbors reported hearing and seeing defendant Alonzo Taylor abuse his dog. Defendant, who was on probation for another matter, was arrested and later found guilty of one count of animal cruelty under Penal Code section 597, subdivision (a). In a bifurcated proceeding, the court found defendant had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and had served four prior prison terms (§ 667.5, subd. (b)). Based on the animal cruelty conviction, the court found defendant had violated his probation.
Undesignated statutory references are to the Penal Code. --------
The court sentenced defendant to an aggregate term of 11 years four months in state prison for the animal abuse offense and for the underlying offense for the probation violation. The court imposed the upper term of three years on the animal abuse charge, doubled to six years under the "Three Strikes" law, plus one year consecutive for each of the four prior prison terms. The court also imposed a consecutive term of 16 months (one-third the middle term doubled) for the offense underlying the probation violation.
On appeal, defendant claims the court's failure to give a unanimity instruction requires reversal of his animal cruelty conviction. He also argues the court erred by doubling the sentence in the probation violation case, and by imposing a consecutive sentence for that term.
We conclude the court did not err in declining to give the unanimity instruction because defendant's actions were so closely connected as to form a single transaction of abuse. We agree the court erred when sentencing defendant for the probation violation because he did not admit the strike allegations in that case. We affirm but vacate the sentence and remand the matter for resentencing.
FACTS AND PROCEEDINGS
In April 2015, defendant was charged with failing to register as a sex offender under section 290 in case No. 15F02211. (§ 290.018, subd. (b).) The complaint alleged two prior strike convictions. Defendant pleaded no contest to violating section 290.018, subdivision (b), and the balance of the charges were dismissed. He did not admit either strike conviction as part of the plea. He was placed on five years' formal probation.
On October 7, 2015, defendant was arrested at his daughter's house for animal cruelty in case No. 15F06215. Based on the arrest, the prosecutor also filed a petition for violation of probation in case No. 15F02211.
At approximately 9:46 p.m. on October 7, Jordan Reynoldson, who lived next door, called 911 to report hearing a commotion coming from the home's backyard. Reynoldson heard a man yelling at a dog, and then striking and yelping sounds. He testified the yelling, striking, and yelping happened repetitively and described it as "continual." He estimated it continued for about 10 minutes after calling police.
Although he tried to look out a window to see what was happening, his view into the backyard was obstructed by trees. Using his cell phone, he recorded the sounds. The recording, which was approximately one minute and 40 seconds, was played for the jury.
Reynoldson also heard a female voice asking the man why he was doing that. The man responded that he needed to discipline the dog and the dog needed to fear him and no one else.
Another neighbor, Libby Cortez, also heard screaming, yelping, and crying noises through closed windows as she watched television in her home. From her master bathroom window, Cortez could see a man in the backyard from where the noises were coming. A porch light illuminated the back patio area of the home. Cortez saw the man, later identified as defendant, suspending a dog by the neck with a rope or chain. The dog's paws were off the ground, and it was twitching, moaning, and yelping. While the dog was suspended, Cortez saw defendant kick the dog and hit it with something like a long stick that made a cracking noise upon impact. The dog would "swing away" when defendant kicked it.
After retrieving her phone from downstairs, Cortez called 911 at approximately 9:50 p.m. A recording of her 911 call was played for the jury. She returned to the window and saw defendant continue to hit and kick the dog and restrain it with a leash. Approximately five minutes later, law enforcement arrived.
At 9:46 p.m., Elk Grove animal control officer Jeffrey Larcom was dispatched to do a welfare check based on a report of a dog possibly being beaten. He arrived on scene at approximately 9:56 p.m.
Larcom heard a man yelling in the backyard. He shined a flashlight towards the backyard and identified himself as an animal control officer. Defendant met him at the side gate wearing thick black gloves. After Larcom told defendant that he was there to check on the dog's welfare and asked if he could see the animal, defendant responded he could but the dog was bloody because he had been training it.
Larcom followed defendant into the backyard and saw a small, young, thin pit bull curled up with a leash and collar on. The dog was bloody and had bloody paws with missing nails. The dog appeared to be extremely fearful. Blood smears consistent with something being dragged across the concrete patio were visible.
Defendant told Larcom that dog needed to listen to him, and to come to him and respect him. He described pulling and swinging the dog around by his leash and collar. He admitted dragging the dog on the concrete patio until his paws started bleeding, and he said he hit the dog in the face with his gloved hands when he did not listen.
Larcom called for backup and defendant was arrested. He told officers he did not believe he had done anything wrong. The arresting officer testified she heard defendant tell Larcom he was training his dog by hitting it and dragging it by its neck around the backyard on its leash.
Later that night, a veterinarian examined the dog, a pit bull puppy, approximately eight months old, named Blue. The dog's muzzle, lips, ear flaps, and inner ear canals were all bruised. Both eyes had moderate to severe scleral hemorrhage, which could have been caused by either strangulation, blunt force trauma, or both. All four of the dog's paws were injured; the nails were worn down and bloodied, and the tops of the toes and foot pads had been abraded and were freshly bleeding. The veterinarian characterized the injuries as "fresh," meaning they happened within several hours. The dog also had injuries up its legs; some of the wounds appeared older while others were new because they were freshly bleeding. She did not see any indication the dog had ointment applied to its paws, which would have left a greasy residue.
Defendant's daughter, Ophelia Cooper, testified on his behalf. According to Cooper, defendant first brought Blue to her house the night before his arrest. She noticed its paws were scraped and bloody, and she saw her father dress and put ointment on the wounds.
Defendant left Blue and another pit bull he owned named Ceta at Cooper's house. He returned the next day, October 7, and redressed Blue's wounds. Later, Cooper was awakened by one of her children who said Blue was crying outside. Cooper saw defendant in the backyard with Blue and asked him what was wrong. Cooper testified defendant was cupping Blue's face in his hands, and telling the dog that it needed to listen. Although defendant was giving the dog commands, she never saw him strike the dog.
Cooper had earlier told investigators her father told her Blue was hurt after he accidentally got dragged on a leash behind defendant's bicycle. At trial, she admitted defendant, while in jail, tried to convince her to change her original story about him telling her about the bicycle dragging. And, contrary to her trial testimony, Cooper also told the investigator she had seen her father hit Blue on the tip of his nose with his hand.
Defendant, who admitted four prior felony convictions, testified on his own behalf. According to defendant, he saw Blue on the street the day before he was arrested. The dog was already injured when he found him. He eventually took the dog to his daughter's house, bathed him, and put ointment on his wounded paws. He never swung the dog by his leash or collar, or suspended him off the ground. He never kicked the dog, nor did he drag him. He denied telling the officers he had done any of those things while training the dog. Although he admitted smacking the dog on the muzzle with a ski glove, he denied ever hitting him anywhere else. He claimed Blue already had all of the injuries the veterinarian documented when he found him.
After deliberating for approximately 45 minutes, the jury found defendant guilty of animal cruelty. (§ 597, subd. (a).) In a bifurcated proceeding, the court found the prior strike and prior prison allegations true. (§§ 667, subds. (b)-(i), 1170.12, 667.5, subd. (b).) Given the animal cruelty conviction, the court also found defendant violated his probation in case No. 15F02211.
For the animal cruelty conviction, the court sentenced defendant to the upper term of three years, doubled to six years under the Three Strikes law. It also imposed consecutive one-year terms for each of the four prison priors under section 667.5, subdivision (b). For the offense underlying the probation violation, the court imposed a consecutive term of eight months, doubled to 16 months for the two strike allegations contained in the sex offender registration complaint but not admitted by defendant in his plea to that charge. Defendant's total aggregate prison term was 11 years four months. Defendant timely appealed.
DISCUSSION
I
Unanimity Instruction
The trial court denied defendant's request for a unanimity instruction, finding it unnecessary because the prosecution alleged a continuous course of abusive conduct on a single day rather than separate acts of abuse. In defendant's view, the court prejudicially erred in failing to give a unanimity instruction because there were a series of discrete events that could have formed the basis for the jury's verdict he was guilty of torturing or wounding the dog in violation of section 597, subdivision (a), thereby raising the danger the jury did not unanimously agree on his guilt. The absence of the instruction, he argues, essentially lowered the prosecution's burden of proof. We disagree.
"In a criminal case, a jury verdict must be unanimous." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo); see also People v. Wolfe (2003) 114 Cal.App.4th 177, 183-184; People v. Sanchez (2001) 94 Cal.App.4th 622, 631 (Sanchez) ["A unanimous jury verdict is required in criminal cases"].) This means each individual juror must be convinced, beyond a reasonable doubt, the defendant committed the specific offense with which he is charged. (Russo, supra, at p. 1132.) "The requirement of unanimity as to the criminal act is intended to eliminate the danger the defendant will be convicted even though there is no single offense all the jurors agree the defendant committed." (People v. Zavala (2005) 130 Cal.App.4th 758, 768.)
When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes, or the trial court must instruct the jury that it must unanimously agree the defendant committed the same criminal act. (Russo, supra, 25 Cal.4th at p. 1132.) The unanimity instruction must be given sua sponte even if the defendant does not request the instruction. (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
A unanimity instruction is not required, however, "where the criminal acts are so closely connected to form a single transaction or where the offense itself consists of a continuous course of conduct." (Sanchez, supra, 94 Cal.App.4th at p. 631.) "This is because in both cases, the multiple acts constitute one discrete criminal event. [Citation.]" (Ibid.) " '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. Dieguez (2001) 89 Cal.App.4th 266, 275.)
"An offense is of a continuing nature when it may be committed by 'a series of acts, which if individually considered, might not amount to a crime, but the cumulative effect is criminal.' " (Sanchez, supra, 94 Cal.App.4th at p. 632.) Courts have also found "a continuing course of conduct where the wrongful acts were successive, compounding, interrelated, and aimed at a single objective." (Ibid.; People v. Dieguez, supra, 89 Cal.App.4th at p. 275 [multiple false statements and representations made during single doctor's visit to falsely obtain worker's compensation benefits were part of a continuing course of conduct].)
As defendant notes, this court in Sanchez recognized that the offense of animal cruelty may be committed by a continuous course of conduct, such as failing to feed or water an animal, as well as by a single act of abuse, such as hitting an animal. (Sanchez, supra, 94 Cal.App.4th at pp. 633-634 [interpreting § 597, subd. (b) for inflicting unnecessary cruelty or needless suffering on an animal].) He contends the latter circumstance—discrete acts of abuse—applies rather than the continuous course of conduct exception because there was evidence that the dog had sustained multiple blows to various parts of its body. In his view, it is immaterial the prosecutor confined the charged abuse to a single night against a single animal because there were separable segments of the offense charged.
On the record before us, we conclude the continuous course of conduct exception applies. That is, the alleged acts of abuse relied upon by the prosecutor were so closely connected as to form part of one continuing transaction. All of the acts occurred within a short time span on the same day, October 7, against the same animal. This case, then, is unlike Sanchez where the court found a unanimity instruction was required where the evidence showed two discrete criminal events of cruelty against two dogs on two separate occasions. (Sanchez, supra, 94 Cal.App.4th at p. 634.)
Here, Reynoldson testified he first heard repetitive striking and yelping sounds sometime after 9:30 p.m.; he called 911 at approximately 9:46 p.m. A second 911 call reporting similar information was logged approximately five minutes later. Animal control officer Larcom arrived on scene at approximately 9:56 p.m. The abuse took place on the back patio of the house, and Blue was the only dog abused.
A reasonable inference from this evidence is that the abuse occurred on the patio within the span of 30 minutes, and probably less, and stopped when Larcom arrived at the house. The abuse was repetitive and continuous.
Defendant admitted to officers he was training the dog and was trying to get the dog to submit to him. During the training, he said he hit the dog, swung him around by the leash, and dragged him. Defendant's own statements were corroborated by the neighbor's testimony who witnessed the continuous beating.
Defendant's actions, whether hitting, kicking, pulling, or swinging the dog were all aimed at the single objective of training the dog into submission. His repeated conduct occurred during an approximate 30-minute time span on October 7 on the backyard patio. In other words, his abusive actions were not separated by time or space, but were so closely connected in time and purpose that they formed part of a single continuous transaction.
There was no reasonable factual basis for the jury to distinguish between defendant's various actions, and no reasonable legal basis to distinguish between them in establishing a single offense of animal cruelty under section 597, subdivision (a). Thus, no unanimity instruction was required.
II
Sentencing Error on the Probation Violation
Defendant contends the court erred in sentencing him to a consecutive eight-month term, which it doubled under the Three Strikes law to 16 months, on the offense underlying the probation violation in case No. 15F02211. he People concede, and we agree, the court erred in doubling the sentence. The parties also agree the trial court mistakenly believed it was mandatory to impose a consecutive rather than concurrent term for the probation violation. Again, we agree.
Although the complaint in the earlier sex offender case to which defendant pleaded no contest included two prior strike allegations, defendant did not admit the allegations as part of the plea. Instead, it appears the allegations were dismissed and defendant was placed on formal probation. Thus, defendant's eight-month term for the offense after probation was revoked should not have been doubled under the Three Strikes law. (§ 667, subd. (c); People v. Mancebo (2002) 27 Cal.4th 735, 747 [enhancement provisions must be pleaded and proven].)
Because defendant was on probation at the time he committed the animal cruelty offense in case No. 15F06215, he was not "already serving" a term in case No. 15F02211 within the meaning of section 667, subdivision (c)(8). (People v. Rosbury (1997) 15 Cal.4th 206, 210 [a defendant on probation "was not 'already serving' 'any other sentence' when 'sentence [was] imposed pursuant to subdivision (e)' of section 667"].) Thus, a consecutive sentence on the probation violation was not mandated by that provision. (§ 667, subd. (c)(8) ["Any sentence imposed pursuant to subdivision (e) will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law"].) Nor was consecutive sentencing required under section 667, subdivision (c)(7) because the prior conviction was not a "current conviction" within the meaning of that subdivision. (People v. Rosbury, supra, at pp. 209-210.)
Given the court's sentencing error, we vacate the sentence and remand the matter for resentencing. The trial court has the discretion to determine whether the eight-month term on the probation violation in case No. 15F02211 is to be consecutive or concurrent to the sentence imposed in case No. 15F06215 for the animal cruelty conviction.
DISPOSITION
The judgment in case No. 15F06215 is affirmed. The sentence is vacated and the matter is remanded to the trial court for resentencing consistent with this opinion.
NICHOLSON, J. We concur: RAYE, P. J. HOCH, J.