Filed 6/16/20
           CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   FIRST APPELLATE DISTRICT

                          DIVISION THREE


    THE PEOPLE,
         Plaintiff and
    Respondent,                         A156662

    v.                                  (City & County of San
    JULIAN COLE,                        Francisco
                                        Super. Ct. No. SCN227985)
         Defendant and
    Appellant.

         Julian Cole was convicted of robbery and related crimes
after he beat victim Ricardo G. and took two cell phones from
him. Cole contends the court erred when it failed to give a
unanimity instruction and when it placed him on two separate
but concurrent grants of probation based on separate offenses
rather than on one grant of probation based on his aggregate
sentence. Cole’s unanimity argument is meritless and rejected in
the unpublished portion of this opinion, but in the published
portion, we join the People and agree Cole is subject to but one
probationary term. We therefore modify the judgment in that
respect and affirm it as so modified.



*Pursuant to California Rules of Court, rules 8.1105(b) and
8.1110, this opinion is certified for publication with the exception
of part I of the Discussion section.

                                   1
                         BACKGROUND
      By June 2017, Cole and Ricardo had been in an intimate
relationship on and off for about a year. During that period
Ricardo bought Cole gifts, gave him money, and opened a cell
phone plan for him through an ATT employee account. By
Ricardo’s estimation he spent between $4,000 and $6,000 on Cole
over the course of their relationship.
      By May 2017, Ricardo felt the relationship was “not really
going no where [sic] as well as it was just lies, cheating, even
though . . . there was still a connection.” Moreover, Cole had
been failing to reimburse Ricardo for his phone bills as they had
agreed. Ricardo told Cole he wanted to end the relationship and
warned him he would discontinue Cole’s phone plan unless Cole
made good on his agreement to repay him. But, as had
happened before, Cole reached out to Ricardo and asked him to
restart their relationship. The two agreed to meet to discuss
their relationship face to face.
      On June 8, 2017, Cole and Ricardo met on a corner near
Ricardo’s home in the Mission district and started arguing as
they walked down an alleyway toward a restaurant. Ricardo
suspected Cole of seeing other people and demanded to see his
phone to see “if [he] had any skeletons in the closet from the time
[they] weren’t seeing each other.” Cole initially refused, but
when Ricardo started to walk away, he called out “ ‘Wait, I’m
going to show you. Please don’t get mad.’ ” Standing in the alley,
they exchanged cell phones.




                                   2
       When Ricardo looked at Cole’s phone, he saw a text
message between Cole and a former co-worker for whom Ricardo
had also arranged discounted purchases from AT&T. The
message stated, “ ‘Ricardo has money. We’re not going to pay
him back.’ ” Ricardo became angry and threw Cole’s phone on
the ground.
       Cole started repeatedly punching Ricardo in the face.
Ricardo testified, “I remember saying ‘stop, stop.’ Then he will
continue going, going. I remember falling down multiple times.
Trying to get back up to get my balance, but with him continuing
hitting me, fall back down.” Then, while Ricardo was on the
ground, Cole reached into his pants pockets and took his work
and personal cell phones. Ricardo asked Cole to give back the
phones, but Cole said “ [t]hese are my phones now’ ” and “ ‘[n]o
one is going to believe you, you fucking faggot.’ ” Ricardo tried to
get up and follow Cole, but Cole continued the beating, pushed
him down and “kept on kicking me on the floor and punching
me.”
       Eventually Cole left Ricardo lying in the alley and headed
toward the 24th Street BART station. As he walked away, he
threatened, “ ‘[i]f you do call the cops I will send my brother to
come and kill you.’ ”
       Ricardo suffered cuts and bruises to his face, a laceration
above his left lip, bruised and sore ribs and a broken nose. Police
apprehended Cole in the 24th Street BART station shortly after
the assault. He was uninjured but there was blood on his face




                                  3
and right hand, blood spatter on his forearms, and he was
gripping a bloody shirt. Ricardo’s cell phones were in his pocket.
      Cole testified, and defense counsel argued, that he had
acted in self-defense during a mutual fight started by Ricardo.
Ricardo was romantically interested in him, but their
relationship was not sexual or romantic. Rather, Cole had an
agreement with Ricardo “that I would spend time with him
alone” in exchange for Ricardo’s financial help that included
paying for Cole’s cell phone, Uber rides, restaurant meals and
other expenses. This was “a better deal” than having sex with
Ricardo. Cole admitted he was a “con artist” who pretended to be
Ricardo’s boyfriend and led him on for a year to think they would
eventually have sex.
      Cole testified that he met with Ricardo the evening of the
fight because Ricardo threatened to sue him for the money he had
spent on Cole. Cole wanted to set up some kind of repayment
arrangement to diffuse the situation. Ricardo “started swinging”
after slamming Cole’s phone to the ground, and the two started
fighting. Cole did not push Ricardo to the ground. Instead,
Ricardo fell when he moved backward as they fought, then
started grabbing at Cole’s legs. Cole kicked at Ricardo “to get
him off of me.” Eventually Ricardo, still on the ground, pulled
out his phones and handed them to Cole, saying “ ‘[h]ere, just
take my phones.’ ” Cole thought this was because Ricardo felt
guilty about breaking his phone.
      Cole was charged with domestic violence with a special
allegation of infliction of great bodily injury (count 1), assault



                                  4
with force likely to cause great bodily injury (count 2), battery
with serious bodily injury with a special allegation of infliction of
great bodily injury (count 3), second degree robbery (count 4),
criminal threats (count 5), and dissuading a witness (count 6).
The jury convicted him of counts two through four and acquitted
him of counts five and six. The prosecution dismissed count one
after the jury was unable to reach a verdict on it.
      The trial court suspended imposition of sentence and
placed Cole on three years’ probation. Cole filed a timely appeal.
                          DISCUSSION
I. The Robbery Count Did Not Require a Unanimity
Instruction
      The elements of robbery are: “(1) a taking (2) of personal
property (3) in the possession of another (4) from [his] person or
immediate presence (5) against [his] will (6) accomplished by
means of force or fear (7) with an intent to permanently deprive.”
(People v. Prieto (1993)15 Cal.App.4th 210, 213, footnote omitted.)
Here, Cole asserts his state and federal constitutional rights were
violated because the court failed to instruct the jurors sua sponte
that they must agree on the specific acts that constituted the
force or fear element of robbery. He is mistaken.
      A criminal defendant has a constitutional right to
a unanimous jury verdict. (Cal. Const., art. I, § 16.) Where the
evidence shows that more than one offense occurred, the court
must instruct the jury that it must unanimously agree on at least
one of the offenses involved in order to convict. (People v.
Madden (1981) 116 Cal.App.3d 212, 219.) The danger in failing



                                  5
to give a unanimity instruction in such cases is that the jury
might return a conviction even though not all the jurors are
convinced beyond a reasonable doubt that the defendant
committed the same criminal act. (People v. Gunn (1987) 197
Cal.App.3d 408, 412; People v. Epps (1981) 122 Cal.App.3d 691,
701-703.) 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.” (People v.
Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) But, “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.” (Id. at p. 1132.) “This
is true even if the theories are based on different facts.” (People
v. Grimes (2016) 1 Cal.5th 698, 727.) Thus, to determine whether
the unanimity instruction is required, “the trial court must ask
whether (1) there is a risk the jury may divide on two discrete
crimes and not agree on any particular crime, or (2) the evidence
merely presents the possibility the jury may divide, or be
uncertain, as to the exact way the defendant is guilty of a single
discrete crime. In the first situation, but not the second, it should
give the unanimity instruction.” (Russo, supra, 25 Cal.4th at p.
1135.)
      The instruction was not required here. The force or fear
element undisputedly pertained only to the one robbery offense,



                                 6
Cole’s taking of Ricardo’s phones. Because there was but one
robbery, there was no possibility the jury might “divide on two
discrete crimes.” (Russo, supra, 25 Cal.4th at p. 1135.) As Russo
also teaches, it does not matter that the jurors could have found
Cole guilty of the robbery without agreeing on which specific act
or acts, e.g., the initial punch, the struggle after he took the
phones, or his threat about contacting police, satisfied the force or
fear element of the offense.
      Cole’s argument fails for a related reason as well. The
requirement to instruct on unanimity does not govern “ ‘if the
case falls within the continuous course of conduct exception,’ ” as
“ ‘when the acts are so closely connected that they form part of
one and the same transaction, and thus one offense.’ ” (People v.
Avina (1993) 14 Cal.App.4th 1303, 1309.) Moreover, “[t]he
‘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.”
(People v. Stankewitz (1990) 51 Cal.3d 72, 100.) This case
presents both situations. Cole’s various acts of force or fear took
place over a brief, uninterrupted span of time in a single location
during the process of accomplishing the robbery. His sole
defense, that Ricardo gave him the phones voluntarily, applied
without regard to which of those acts supplied the force or fear
element of the robbery offense. (See People v. Gomez ) (2008) 43
Cal.4th 249, 258 [if force or fear “are in play at any time during
the period from caption through asportation, the defendant has
engaged in conduct that elevates the crime from simple larceny to



                                  7
robbery]; People v. Covarrubias (2016) 1 Cal.5th 838, 879.) No
unanimity instruction was required.
II. Cole is Subject to Only One Term of Probation
      At the sentencing hearing the court suspended imposition
of judgment for each count, placed Cole on three-year grants of
probation for each count, and stayed the grant of probation as to
count three. The court explained, “you are essentially on two
different grants of probation and both these are to be concurrent
with one another.” The minute order reflects what appears to be
separate grants of probation for counts two and four.
      The Attorney General agrees with Cole’s position that he is
subject to a single grant of felony probation based on the
suspended imposition of his aggregate sentence, rather than
separate grants of probation for each of the two discrete offenses.
The question appears to be a novel one, but under the present
circumstances we believe the parties are correct. As the Attorney
General observes, our sentencing laws calculate an aggregate
term based on the relationship between offenses. (§ 1170.1, subd.
(a); see Cal. Rules of Court, rule 4.452(a)(1) [“[t]he sentences on
all determinately sentenced counts in all of the cases on which a
sentence was or is being imposed must be combined as though
they were all counts in the current case].) Subject to certain
exceptions, section 1203.1, subdivision (a) provides for a felony
probation term based on “the maximum possible term of the
sentence” (italics added), at least impliedly referring to the
aggregate term rather than the term imposed on a particular




                                  8
offense.1 While the question is theoretical here because the court
imposed the two probationary terms concurrently, we therefore
agree with the parties’ request to clarify that Cole is subject to a
single three-year term of probation.
                          DISPOSITION
      The judgment is modified to clarify that Cole’s probation is
a single grant subject to the terms and conditions specified in the
order pertaining to the individual offenses. As so modified, the
judgment is affirmed.




      1 “The court, or judge thereof, in the order granting
probation, may suspend the imposing or the execution of the
sentence and may direct that the suspension may continue for a
period of time not exceeding the maximum possible term of the
sentence, except as hereinafter set forth, and upon those terms
and conditions as it shall determine.” (§1203.1, subd. (a).)

                                  9
                                 _________________________
                                 Siggins, P.J.


WE CONCUR:


_________________________
Petrou, J.


_________________________
Jackson, J.




People v. Cole, A156662


                            10
Trial Court:                             City & County of San
                                         Francisco Superior
                                         Court


Trial Judge:                             Hon. Bruce E. Chan


Counsel:

Robert L.S. Angres, First District Appellate Court under
appointment of the Court of Appeal for Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Senior
Assistant Attorney General, Catherine A. Rivlin, Supervising
Deputy Attorney General, Karen Z. Bovarnick, Deputy Attorney
General for Respondent.




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