Filed 9/24/14 P. v. Scott CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066446
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 12CM2517)
                   v.

ROGER WAYNE SCOTT,                                                                       OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.
         Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Henry J.
Valle, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Roger Wayne Scott (defendant) was charged, by first amended information, with
assault by means of force likely to produce great bodily injury (Pen. Code,1 § 245,
subd. (a)(4); count 1), willful infliction of corporal injury resulting in a traumatic
condition on a former cohabitant within seven years of a prior conviction for the same
offense (§ 273.5, subds. (a) & (e); count 2), false imprisonment by violence or menace
(§ 236; count 3), intimidation of a witness by force or threatened use of force (§ 136.1,
subd. (c)(1); count 4), and robbery (§ 211; count 5). It was further alleged he had
suffered a prior “strike” conviction. (§§ 667, subds. (b)-(i), 1170.12, subd. (a)-(d).) A
jury convicted him as charged in counts 3 and 4, acquitted him of count 5, and convicted
him of the lesser included offenses of simple assault (§ 240) on count 1 and simple
battery (§ 242) on count 2. Defendant admitted the prior strike conviction allegation, and
was sentenced to a total of nine years four months in prison and ordered to pay various
fees, fines, and assessments.
       On appeal, we hold: (1) Considered in the context in which they were asked, the
“was he lying” questions asked of defendant during cross-examination by the prosecutor
did not constitute misconduct, and defendant was not deprived of the effective assistance
of counsel; (2) Assuming a unanimity instruction should have been given with respect to
count 4, omission thereof was harmless; (3) Defendant’s conviction for simple assault,
and his conviction for simple battery, were based on the same conduct, and simple assault
is a lesser included offense of battery, so the conviction for simple assault must be
reversed; and (4) Execution of sentence on the conviction for simple assault must be
stayed pursuant to section 654. We modify the judgment accordingly.




1      All statutory references are to the Penal Code unless otherwise stated.



                                              2.
                                         FACTS
                                             I
                                PROSECUTION EVIDENCE
      Jolene Jones and defendant lived together off and on for 12 years, and had a child
together. As of July 15, 2012, the two did not live together, but defendant came to
Jones’s Hanford apartment every day to visit their son. The couple had had physical
confrontations six or seven times during their relationship. One, which occurred in July
2011, resulted in defendant’s prior conviction for spousal abuse.
      On July 15, 2012, defendant arrived at Jones’s apartment in the morning. He was
still there when defendant’s daughter, Ambry Perez, and her boyfriend, Johnny Gonzalez,
Jr., arrived that evening. Jones, Perez, and Gonzalez planned to get high on
methamphetamine. Defendant objected to Jones having company at 10:00 p.m., but
Jones essentially let him know he did not live there, so she was going to have company
over when she wanted.
      Defendant and Jones got into an argument over the subject. There was yelling,
and Jones threatened to call the police on defendant. Jones went to the back door.
Defendant said something to her, and put his arm around her from behind, holding her
and choking her neck so she could not go near the door.
      When defendant first started choking Jones, they were in the kitchen. He then
tried to drag her down the hallway to the bedroom. Jones was not able to breathe while
he was choking her. Jones was trying to scream, and told defendant she wanted to leave.
He told her she was not going anywhere. Jones had her cell phone in her hand; defendant
forcibly grabbed it from her and threw it across the room, breaking it. Defendant said he
would not allow her to call the police on him, because he would lose everything he had
once again.




                                            3.
       While defendant was trying to drag Jones into the bedroom, she fought to free
herself. She grabbed a mirror from a stand in the hallway, reached behind herself, hit
him with it, and “busted his head open.”2
       Several officers from the Hanford Police Department responded to the apartment.
Officer Cavazos contacted Jones. She was very emotional, and had a difficult time
speaking and answering his questions. She related that the confrontation started in the
living room/kitchen area of the apartment, and that she was pulled by the hair and choked
at the same time. Cavazos saw no bruising to her neck, head, or face. He did, however,
notice what appeared to be a fresh bruise on her arm.3
       Cavazos took photographs while at the apartment. In the living room, he
photographed a cell phone that was broken into three pieces. He also took a photograph
of an injury to defendant’s head, above the right ear. Defendant pointed it out and said he
received it when Jones struck him with a mirror. Defendant told Cavazos he may have
broken the cell phone. Defendant also said he wanted to speak with Jones in the
bedroom, so he was motioning for her to go in that direction. He grabbed her with his
arms. Defendant related the argument had to do with the fact he did not appreciate Perez
and Gonzalez visiting so late at night, and he also did not agree with Jones’s plan to get a
tattoo of her baby’s name.
       Cavazos also spoke to Perez that night. Perez never said Jones had gotten up in
defendant’s face or that Jones was the aggressor. Perez related that defendant had

2       Perez recalled defendant getting “a little upset” because Jones was talking about
getting a tattoo. When defendant learned of this plan, he said he did not want anybody
around. Jones responded that it was her house. Jones was “kind of getting in his face”
and irritating him, then they got into an argument that never left the kitchen. Jones tried
to hit defendant, who was trying to fight her off. He then bear hugged her somewhat so
she would not harm him or herself, whereupon Jones got a mirror and hit him in the head.
3     According to Jones, she experienced difficulty breathing as a result of being
choked. She did not know if the bruise on her arm was caused by defendant.



                                             4.
grabbed Jones and tried to pull her toward the bedroom, and that he choked her and
would not let her leave the apartment.
       Pamela Tejeda testified as an expert in intimate partner violence. She explained
that domestic violence “is about power and control.” She also explained why victims of
domestic violence often return to the relationship, and why they almost always recant
their stories.
                                             II
                                   DEFENSE EVIDENCE
       Defendant testified he lived in Jones’s apartment, with Jones and their son, from
April 2012 through the date of his arrest. Prior to the confrontation that night, defendant
was asleep. Jones woke him and said Perez and Gonzalez were going to come over.
Defendant responded that she should not have people coming over that late at night. He
knew they were coming to do drugs and put tattoos on Jones, because Jones told him.
       Jones and defendant went into the kitchen, where the back door was located, and
Jones opened the door and allowed Perez and Gonzalez to come in. Defendant told them
he did not need them coming in the house, bringing drugs and tattoos, at 10:30 at night.4
Jones became angry with defendant because he did not want people to come in the house.
Defendant picked her up in a bear hug from the back and turned her around. As he
turned her around, she tried to grab a knife from the kitchen counter. Defendant grabbed
her hand to keep her from getting the knife. He moved her from the back door and
carried her into the living room, a distance of about four or five feet.5 She grabbed a
mirror off a stand and hit him in the head. He let her go.


4      Gonzalez was going to give Jones a tattoo on her arm.
5      Defendant denied dragging her or putting his arm around her neck. He also denied
preventing Jones from leaving the home, attempting to force her to go to the bedroom, or
threatening her to keep her from calling the police.



                                             5.
         Defendant was going to pack his clothes, and told Jones he was going to take his
son.6 Jones went to the kitchen table and showed Gonzalez a picture on her cell phone of
the tattoo she wanted. Defendant went into the kitchen, grabbed the phone off the table,
broke it, and told Gonzalez he would not be putting any tattoos on Jones. He then went
back into the bedroom to finish packing his clothes. He did not know Perez was calling
the police.
         Defendant admitted having a prior conviction for spousal abuse. During that
incident, defendant did not batter Jones. He saw Jones punch herself in the face.7
Defendant accepted a plea agreement because Jones, who was pregnant with their son,
was having a difficult pregnancy, and defendant needed to be out of custody to help her.
Once he was released, he got back together with her.
         On September 24, 2012, defendant wrote Jones a letter, despite the fact he had
been under a court order since July not to contact her and he knew the letter was a direct
violation of that court order. In the letter, defendant referenced the Fifth Amendment and
the “California Code of Perjury” section that says a domestic violence victim cannot be
put in jail for not testifying.8 He wrote the letter, which mostly contained Bible verses,
because she had written him to say someone had stolen money from her.
                                        DISCUSSION
                                               I
                               PROSECUTORIAL MISCONDUCT
         Defendant contends the prosecutor committed prejudicial misconduct by asking
defendant, during cross-examination, whether Cavazos was lying during his testimony.

6        Defendant was trying to take the child because he did not want him to be around
drugs.
7        Jones denied hitting herself in the face or telling anyone she had done so.
8        See Code of Civil Procedure section 1219, subdivision (b).



                                               6.
Implicitly recognizing the issue is not cognizable on appeal because defense counsel
failed to object to the questioning, defendant further says he was deprived of the effective
assistance of counsel. We find no cause for reversal.
A.     Background
       Perez’s and, to a certain extent, defendant’s testimonies at trial differed from
Cavazos’s testimony concerning what they told him the night of the incident. Defense
counsel cross-examined Cavazos in part concerning his report, and whether it was
complete and accurate. In addition, defendant disputed, during direct examination, the
photograph of Jones’s cell phone, saying the location shown in the picture was about 10
feet away from where the parts of the phone landed when he broke it. Asked by his
attorney if everything he had told the jury was the truth, defendant affirmed that it was.
       On cross-examination, defendant testified he had seen Cavazos “on the streets,”
but did not know him personally. Asked by the prosecutor if he knew any reason why
Cavazos would want to lie about defendant’s case, defendant responded, “Not that I can
think of.”
       After the prosecutor asked some questions about defendant’s version of events, the
following took place:

              “Q. Now, do you recall giving a statement to Officer Cavazos?

              “A. No, sir.

              “Q. You don’t recall, or you are saying you didn’t give him one?

              “A. I didn’t give him one. I gave Officer Stingley a statement.

              “Q. Okay, and so when Officer Cavazos testified under oath
       yesterday, was he lying about taking a statement from you?

              “A. Yes, he was.

              “Q. And you already told us that you don’t know Officer Cavazos?

              “A. I do not know him.


                                             7.
       “Q. And you don’t know of any reason why he would come in here
and lie under oath?

       “A. No, sir.

      “Q. Did you hear [Jones] say she gave Officer Cavazos a statement?
[¶] … [¶]

       “A. Yes, sir. [¶] … [¶]

       “Q. Okay, did you hear yesterday [Jones] testified that you put her
in a choke hold?

       “A. Yes, sir. [¶] … [¶]

       “Q. Now, is it your testimony here today then, because you have
told us everything you said is the truth, is it your testimony that Officer
Cavazos yesterday was lying when he said you told him you grabbed her
and placed her in a hold?

       “[DEFENSE COUNSEL]: Objection, asked and answered.

       “THE COURT: Overruled. [¶] … [¶]

       “A. I don’t think it was too much of a lie, I did make one comment.
The comment being he asked me did Ms. Jones -- did you have a head mark
and I said, yeah. And he said did you grab Ms. Jones, and I said I grabbed
her hand from stopping her from grabbing a knife. I didn’t grab her in a
choke hold. [¶] … [¶]

       “Q. And I am just curious, because when you talked to the officer or
officers, whichever one you talked to that night, there is no indication of
anything about a knife, this is the first I heard of that.

       “A. No, it should have been a statement he should have wrote down,
because he asked me a question. I said when I was reaching her from
stopping to grab the knife I held her in my hand, I didn’t have her in no
choke hold.

      “Q. I am a little bit confused then. Because when you said he
should have wrote it down, and you just pointed to Officer Cavazos?

       “A. He came in the house.

      “Q. He came in the house, but I thought you said you didn’t give a
statement.

                                      8.
              “A. I didn’t give him a full statement. He asked me did I assault
       [Jones], and I did not assault [Jones], but I was trying to tell him what I did
       and he walked out.

               “Q. Okay, so you attempted to give him a statement?

               “A. I attempted to give him a statement.

              “Q. And while you were attempting to give him a statement he
       turned his back?

             “A. He took the picture of my head and turned around and walked
       back out.

               “Q. Did you tell him anything about taking the phone from her?

               “A. No.

              “Q. Was he lying yesterday when he told the jury under oath that
       you said you had taken the phone from her, that you could have?

               “A. Yes, he is lying.”
B.     Analysis
       “‘“A prosecutor’s misconduct violates the Fourteenth Amendment to the United
States Constitution when it ‘infects the trial with such unfairness as to make the
conviction a denial of due process.’ [Citations.] In other words, the misconduct must be
‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’
[Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’ [Citations.]” [Citations.]’
[Citation.] ‘Generally, a claim of prosecutorial misconduct is preserved for appeal only if
the defendant objects in the trial court and requests an admonition, or if an admonition
would not have cured the prejudice caused by the prosecutor’s misconduct. [Citations.]’
[Citation.]” (People v. Lopez (2013) 56 Cal.4th 1028, 1072.)
       Defendant failed to object to the “was he lying” questions on the ground of
prosecutorial misconduct he now asserts. The record does not suggest any such objection


                                                9.
would have been futile or that an admonition would have failed to cure any harm. (Cf.
People v. Chatman (2006) 38 Cal.4th 344, 380 (Chatman).) Accordingly, defendant has
forfeited the claim on appeal. (People v. Collins (2010) 49 Cal.4th 175, 206; People v.
Hawthorne (2009) 46 Cal.4th 67, 97, overruled on another ground in People v. McKinnon
(2011) 52 Cal.4th 610, 637-643; People v. Hinton (2006) 37 Cal.4th 839, 869.) In any
event, his claim fails on the merits.9
       Defendant primarily relies on a line of federal authority that categorically holds
“were they lying” questions constitute misconduct. (E.g., U.S. v. Harrison (9th Cir.
2009) 585 F.3d 1155, 1158; U.S. v. Sanchez (9th Cir. 1999) 176 F.3d 1214, 1219-1220;
U.S. v. Sullivan (1st Cir. 1996) 85 F.3d 743, 749-750; U.S. v. Richter (2d Cir. 1987) 826
F.2d 206, 208.) “‘The courts in these cases explain that these questions infringe on the
jury’s right to make credibility determinations [citations], or that the questions are
misleading because they suggest that the only explanation for the discrepancy between
defendant’s testimony and the other witness’ testimony is that one of them is lying
[citations]. Moreover, the questions might be considered misleading or calling for a
conclusion in that they suggest that the defendant can know what another witness was
thinking.’ [Citation.]” (People v. Zambrano (2004) 124 Cal.App.4th 228, 239.)
       In Chatman, supra, 38 Cal.4th 344, the California Supreme Court declined to
adopt this categorical approach.10 Instead, it first questioned whether the issue was

9      Anticipating we would find forfeiture, defendant contends counsel’s failure to
object constituted ineffective assistance of counsel. Since, as we explain, “we discern no
misconduct on the merits, defendant’s ineffective assistance claim fails” (People v.
Thompson (2010) 49 Cal.4th 79, 121, fn. 14), and we do not discuss it further.
10      The court found cases such as People v. Melton (1988) 44 Cal.3d 713, 744, which
held that lay opinion about the veracity of another’s statements is inadmissible on that
issue, not controlling: “[Those] cases involved lay opinion from those who had no
personal knowledge of the facts. Such opinions are of little assistance in deciding the
credibility of testimony by percipient witnesses who do have personal knowledge. There
is a difference between asking a witness whether, in his opinion, another is lying and


                                             10.
properly considered one of misconduct, since, while intentionally eliciting inadmissible
testimony constitutes misconduct, merely eliciting evidence does not. (Id. at pp. 379-
380.) It then rejected authority that concluded “were they lying” questions are always
improper, and instead approved the line of cases “that counsels a trial court to consider
these questions in context. [Citation.]” (Id. at pp. 381-382.) The court explained:

              “If a defendant has no relevant personal knowledge of the events, or
       of a reason that a witness may be lying or mistaken, he might have no
       relevant testimony to provide. No witness may give testimony based on
       conjecture or speculation. [Citation.] Such evidence is irrelevant because it
       has no tendency in reason to resolve questions in dispute. [Citation.]

               “In challenging a witness’s testimony, a party implicitly or explicitly
       urges that because a witness is lying, mistaken, or incompetent, the witness
       should not be believed. A party who testifies to a set of facts contrary to
       the testimony of others may be asked to clarify what his position is and
       give, if he is able, a reason for the jury to accept his testimony as more
       reliable.

              “The permissible scope of cross-examination of a defendant is
       generally broad. ‘When a defendant voluntarily testifies, the district
       attorney may fully amplify his testimony by inquiring into the facts and
       circumstances surrounding his assertions, or by introducing evidence
       through cross-examination which explains or refutes his statements or the
       inferences which may necessarily be drawn from them.…’ [Citation.]

               “A defendant who is a percipient witness to the events at issue has
       personal knowledge whether other witnesses who describe those events are
       testifying truthfully and accurately. As a result, he might also be able to
       provide insight on whether witnesses whose testimony differs from his own
       are intentionally lying or are merely mistaken. When … the defendant
       knows the other witnesses well, he might know of reasons those witnesses
       might lie. Any of this testimony could be relevant to the credibility of both
       the defendant and the other witnesses. There is no reason to categorically
       exclude all such questions. Were a defendant to testify on direct
       examination that a witness against him lied, and go on to give reasons for


asking that witness whether he knows of a reason why another would be motivated to
lie.” (Chatman, supra, 38 Cal.4th at p. 381.)



                                             11.
       this deception, surely that testimony would not be excluded merely because
       credibility determinations fall squarely within the jury’s province.
       Similarly, cross-examination along this line should not be categorically
       prohibited.” (Chatman, supra, 38 Cal.4th at p. 382.)
       The court concluded: “In sum, courts should carefully scrutinize ‘were they lying’
questions in context. They should not be permitted when argumentative, or when
designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a
court may permit such questions if the witness to whom they are addressed has personal
knowledge that allows him to provide competent testimony that may legitimately assist
the trier of fact in resolving credibility questions.” (Chatman, supra, 38 Cal.4th at
p. 384.)
       In the present case, the prosecutor clearly asked the initial question, about whether
defendant recalled giving a statement to Cavazos, in preparation for attempting to
impeach defendant’s testimony or elicit a prior inconsistent statement. This was a
permissible purpose. None of the questions appear to be designed to elicit irrelevant or
speculative testimony, nor were they argumentative.11 Although defendant did not know
Cavazos personally, defendant testified as a percipient witness and had personal
knowledge of the events. (See Chatman, supra, 38 Cal.4th at p. 382.) By choosing to
testify, defendant put his own veracity in issue. Because his testimony contradicted that
of Cavazos, it was permissible for the prosecutor to seek to clarify defendant’s position
and give him the opportunity to explain the divergent testimony. Under the
circumstances — including the fact the prosecutor’s questions elicited additional
information from defendant — the questions “appropriately assisted the jury in resolving
the issue of whose testimony was more credible. There was no misconduct.” (People v.
Collins, supra, 49 Cal.4th at p. 206; accord, People v. Hawthorne, supra, 46 Cal.4th at

11     “‘An argumentative question is a speech to the jury masquerading as a question.
The questioner is not seeking to elicit relevant testimony.’” (People v. Williams (2013)
56 Cal.4th 165, 192.)



                                             12.
pp. 96-98; People v. Tafoya (2007) 42 Cal.4th 147, 177-179; Chatman, supra, 38 Cal.4th
at p. 383.)
                                              II
                                  INSTRUCTIONAL ERROR
       Defendant contends that, in light of the prosecutor’s argument to the jury, the jury
could have convicted him of witness intimidation based either on the act of breaking
Jones’s cell phone or on the act of writing her a letter after his arrest. This being the case,
he argues, the conviction on count 4 must be reversed because the trial court failed to
give a unanimity instruction as to that count. The Attorney General says no such
instruction was required because the prosecutor elected among the crimes committed.
We conclude any error was harmless.
A.     Background
       The evidence was undisputed that defendant broke Jones’s cell phone. The
prosecution claimed he did it to prevent Jones from calling the police; the defense
claimed he did it so Jones could not have Gonzalez give her a tattoo.
       During his cross-examination of defendant, the prosecutor sought to elicit
testimony about the letter defendant wrote to Jones, after his arrest, in which he
referenced Code of Civil Procedure section 1219, subdivision (b). After argument and a
foundational hearing in which the prosecutor established (through defendant’s admission)
that defendant wrote the letter, the trial court ruled the letter was admissible for the
purpose of showing an intent to dissuade the witness, Jones. Defendant subsequently was
cross-examined on the letter in the jury’s presence, and the letter was admitted into
evidence.
       During his opening argument, the prosecutor told the jurors, in pertinent part:

       “The defendant is charged in Count 4 with intimidating a witness, in
       violation of Penal Code Section 136.1. To prove the defendant is guilty of
       this crime, the People must prove that:


                                              13.
             “One, the defendant tried to prevent or discourage Jolene Jones from
       making a report.

              “She was the victim of a crime to a peace officer. Where does that
       come in? Jolene Jones told you, when she was in the kitchen after
       becoming involved in this argument, she told the defendant she got her
       cellphone out I should say to make a call, and as she tries to make this call.
       She told you his response. ‘You’re not going to call the cops. I almost lost
       everything the last time.’ That is when he grabbed the phone out of her
       hands. Did he prevent or discourage her? Obviously he prevented her,
       because what did he do then? He took the phone and he broke it, threw it
       on the ground, it was in three pieces, okay. That is enough to discourage or
       prevent someone from making a report.”
       After discussing count 5 (robbery), the prosecutor turned to the letter. He
discussed defendant’s explanation for why he wrote it, and his claim he did not know
what Code of Civil Procedure section 1219, subdivision (b) said and was simply told by
someone to include it. The prosecutor told the jury: “Out of all the sections in
California, what are the astronomical odds that he would include that one [which talks
about whether a victim of domestic violence can be put in jail for refusing to testify] in
his letter to her. Is he trying to assert control? Is he trying to keep her from coming to
court and testifying? Is he trying to dissuade a witness? Oh, you bet he is. He is still
trying to exert control.” (Italics added.)
       In his argument, defense counsel focused on the breaking of Jones’s cell phone as
the basis for count 4. He did not mention the letter. In his closing argument, the
prosecutor also only addressed the breaking of the cell phone with respect to count 4 and
likewise did not talk about the letter.
       Neither party requested, and the trial court did not give, a unanimity instruction
such as CALCRIM No. 3500.12

12     CALCRIM No. 3500 reads: “The defendant is charged with ___ <insert
description of alleged offense> [in Count ___ ] [sometime during the period of ___ to
___ ]. [¶] 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


                                             14.
B.     Analysis
       Section 136.1, subdivision (a) makes it a crime to knowingly and maliciously
prevent, dissuade, or attempt to prevent or dissuade a victim from attending or giving
testimony at any trial or proceeding. Subdivision (b)(1) of the statute makes it a crime to
attempt to prevent or dissuade a victim of a crime from reporting that victimization to a
law enforcement officer. In each instance, the offense is a “wobbler,” punishable by
imprisonment in a county jail for not more than one year or in the state prison. If the act
is done knowingly and maliciously, and “is accompanied by force or by an express or
implied threat of force or violence, upon a witness or victim or any third person or the
property of any victim, witness, or any third person,” however, the offense is a straight
felony punishable by imprisonment in state prison for two, three, or four years. (Id.,
subd. (c)(1).)
       “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.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Accordingly, cases have
long held that “when the accusatory pleading charges a single criminal act and the
evidence shows more than one such unlawful act, either the prosecution must select the
specific act relied upon 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. [Citations.]” (People v. Gordon (1985) 165 Cal.App.3d 839, 853,
fns. omitted, disapproved on other grounds in People v. Frazer (1999) 21 Cal.4th 737,
765 & People v. Lopez (1998) 19 Cal.4th 282, 292; accord, People v. Russo, supra, at
p. 1132.)



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.”



                                            15.
       “The unanimity requirement is constitutionally rooted in the principle that a
criminal defendant is entitled to a verdict in which all 12 jurors concur, beyond a
reasonable doubt, as to each count charged. [Citations.]” (People v. Brown (1996) 42
Cal.App.4th 1493, 1499-1500.) It “‘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, supra, 25 Cal.4th at p. 1132) as when, for
example, the jury “‘amalgamat[es] 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.’
[Citation.]” (People v. Moore (1989) 211 Cal.App.3d 1400, 1415.)
       A trial court has a sua sponte duty to instruct on unanimity when the
circumstances warrant and no election has been made. (People v. Melhado (1998) 60
Cal.App.4th 1529, 1534.) A trial court’s failure to so instruct is subject to our de novo
review. (See People v. Waidla (2000) 22 Cal.4th 690, 733.)
       In the present case, either the breaking of Jones’s cell phone or the letter defendant
wrote her could have constituted a violation of section 136.1, and the Attorney General
does not claim otherwise. She contends, however, that no unanimity instruction was
required, because the prosecutor elected, during his summation to the jury, to rely on the
cell phone incident as the basis for count 4.
       Although the prosecutor undoubtedly emphasized the breaking of Jones’s cell
phone, his argument with respect to the letter “muddied the waters,” and he did not then
clearly or directly inform jurors of his election and their concomitant duties. (Compare
People v. Jantz (2006) 137 Cal.App.4th 1283, 1292 with People v. Melhado, supra, 60
Cal.App.4th at p. 1536.) We need not decide whether the prosecutor’s emphasis on the
cell phone incident obviated the need for a unanimity instruction, however, because any
error in the failure to give such an instruction was harmless under either the Chapman
(Chapman v. California (1967) 386 U.S. 18, 24) or Watson (People v. Watson (1956) 46

                                                16.
Cal.2d 818, 836) standard of prejudice. (See People v. Huggins (2006) 38 Cal.4th 175,
193.)13
       In the present case, jurors were instructed that before they could complete and sign
a verdict form for “guilty” of a charged crime, they all had to agree the People had
proved guilt beyond a reasonable doubt. Specifically as to count 4, they were told the
People had to prove, in pertinent part, defendant “tried to prevent or discourage Jolene
Jones from making a report that she was a victim of a crime to a peace officer.” (Italics
added.) There is no reasonable likelihood jurors interpreted this requirement as
encompassing the letter but not the cell phone incident. (See People v. Jablonski (2006)
37 Cal.4th 774, 831; cf. People v. Moore (1983) 143 Cal.App.3d 1059, 1064-1065.)
       Moreover, even if such a strained reading were possible, jurors were further
instructed as to count 4 that if they found defendant guilty of intimidating a witness, they
then had to decide whether the People proved defendant acted maliciously and “used
force or threatened either directly or indirectly to use force or violence on the person or
the property of the victim.” (Italics added.)14 Jurors expressly found this allegation to be


13     There has long been a split in authority concerning the standard applicable to the
erroneous failure to give a unanimity instruction. (People v. Matute (2002) 103
Cal.App.4th 1437, 1448-1449.) We have previously held the Chapman standard
applicable to federal constitutional error applies. (People v. Gary (1987) 189 Cal.App.3d
1212, 1218, overruled on another ground in People v. Flood (1998) 18 Cal.4th 470, 481;
People v. Metheney (1984) 154 Cal.App.3d 555, 563-564, fn. 5.)
14      The written instruction that was given to the jury for use in deliberations, and the
instruction as orally read by the trial court, stated jurors had to decide whether the People
proved “that the defendant acted maliciously or used or threatened to use force” (italics
added), but then immediately stated to prove the allegation, the People had to prove the
defendant acted maliciously and used or threatened to use force. In the written
instruction, “and” was capitalized for emphasis. Section 136.1, subdivision (c)(1)
requires proof of maliciousness and use or threatened use of force, and the verdict also
stated the requirements in the conjunctive. Under the circumstances, there is no
reasonable likelihood jurors understood only maliciousness or force to be required.



                                             17.
true. Nothing in the letter constitutes a threat — whether direct or indirect — to use force
or violence.15
       “We of course presume ‘that jurors understand and follow the court’s
instructions.’ [Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 803.) Under the
evidence presented at trial, jurors could not have found the special finding appended to
count 4 to be true based on the letter. Accordingly, since “‘[a] unanimity instruction is
required only if the jurors could otherwise disagree which act a defendant committed and
yet convict him of the crime charged’” (People v. Beardslee (1991) 53 Cal.3d 68, 93),
either no unanimity instruction was required as to count 4 or its omission, if error, was
harmless beyond a reasonable doubt.
                                             III
                                    SENTENCING ISSUES
A.     Multiple Convictions
       As previously described, defendant was convicted, in count 1, of simple assault as
a lesser included offense of assault by means of force likely to produce great bodily
injury and, in count 2, of simple battery as a lesser included offense of willful infliction
of corporal injury resulting in a traumatic condition. Defendant was sentenced on both
counts (albeit with credit for time served), and ordered to pay a court operations
assessment (§ 1465.8) in the amount of $40 and a court facilities funding assessment
(Gov. Code, § 70373) in the amount of $30 as to each.
       The charges in counts 1 and 2 were based on the same conduct, and assault is a
lesser included offense of battery. As a result, defendant contends, and the Attorney
General concedes, the conviction on count 1 must be reversed, and the attendant
monetary assessments eliminated. We agree.

15    We have read the letter, which is contained in the clerk’s transcript on appeal and
which was sent in to the jury as an exhibit at the beginning of deliberations.



                                             18.
       “In this state, multiple convictions may not be based on necessarily included
offenses arising out of a single act or course of conduct. [Citations.]” (People v. Lewis
(2008) 43 Cal.4th 415, 518, disapproved on another ground in People v. Black (2014) 58
Cal.4th 912, 919-920; accord, People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) “‘An
assault is a necessary element of battery, and it is impossible to commit battery without
assaulting the victim.’ [Citation.]” (People v. Colantuono (1994) 7 Cal.4th 206, 216-
217.) Under the circumstances of the present case, defendant could not properly be
convicted of both assault and battery on Jones. (People v. Ortega (1998) 19 Cal.4th 686,
692, overruled on another ground in People v. Reed, supra, 38 Cal.4th at pp. 1228-1229,
1231; People v. Lopez (1975) 47 Cal.App.3d 8, 15.) The assault conviction must be
reversed.
       Assessments imposed pursuant to section 1465.8, subdivision (a)(1) and
Government Code section 70373, subdivision (a)(1) apply to each conviction, i.e., each
count of which a defendant is convicted. (E.g., People v. Sencion (2012) 211
Cal.App.4th 480, 483-484; People v. Calles (2012) 209 Cal.App.4th 1200, 1226; People
v. Cortez (2010) 189 Cal.App.4th 1436, 1439, 1442-1443; People v. Crabtree (2009) 169
Cal.App.4th 1293, 1328; People v. Walz (2008) 160 Cal.App.4th 1364, 1372.) The trial
court here imposed an aggregate assessment of $160 pursuant to section 1465.8 ($40
times four counts) and an aggregate assessment of $120 pursuant to Government Code
section 70373 ($30 times four counts). We modify the judgment to provide for an
aggregate assessment of $120 pursuant to section 1465.8 and $90 pursuant to
Government Code section 70373.
B.     Section 654
       Defendant’s final claim is that the punishment imposed on count 2 (credit for time
served) should have been stayed pursuant to section 654, because the battery of which he




                                            19.
was convicted in count 2 was incidental to the false imprisonment for which he was
convicted and sentenced in count 3.16 The Attorney General says separate punishment
was permissible, because the convictions were based on multiple, independent objectives.
She says the original act of choking Jones was intended to harm her because she allowed
guests into the apartment; then, as events unfolded, defendant’s intent or objective
changed, and he attempted to drag Jones to the bedroom, thereby preventing her from
contacting police or leaving the apartment.
       Section 654, subdivision (a) provides in pertinent part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” The purpose
behind this provision is to ensure that punishment will be commensurate with culpability.
(People v. Trotter (1992) 7 Cal.App.4th 363, 367-368.)
       “Section 654 prohibits punishment for two crimes arising from a single, indivisible
course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)” (People v. Islas
(2012) 210 Cal.App.4th 116, 129.) “Whether a course of criminal conduct is divisible
and therefore gives rise to more than one act within the meaning of section 654 depends
on the intent and objective of the actor.” (Neal v. State of California (1960) 55 Cal.2d
11, 19, disapproved on another ground in People v. Correa (2012) 54 Cal.4th 331, 334.)
“Where a defendant entertains multiple criminal objectives independent of and not
merely incidental to each other, he may be punished for more than one crime even though
the violations share common acts or are parts of an otherwise indivisible course of
conduct. [Citation.]” (People v. Blake (1998) 68 Cal.App.4th 509, 512.) If, however,


16     Defendant did not object to the imposition of separate sentences in the trial court.
However, an objection is not required to preserve a section 654 claim for review on
appeal. (People v. Scott (1994) 9 Cal.4th 331, 354 & fn. 17.)



                                              20.
“all of the crimes were merely incidental to or were the means of accomplishing or
facilitating a single objective, the defendant may receive only one punishment.
[Citation.]” (People v. Islas, supra, 210 Cal.App.4th at p. 129.)
       Whether a defendant harbored a separate intent and objective for each offense is a
factual determination for the trial court. (People v. Osband (1996) 13 Cal.4th 622, 730.)
When a trial court sentences a defendant to separate terms without making an express
finding the defendant acted pursuant to separate objectives, that court is deemed to have
made an implied finding that each offense had a separate objective (People v. Islas,
supra, 210 Cal.App.4th at p. 129), and that conclusion will be sustained on appeal if
supported by any substantial evidence (People v. Osband, supra, at p. 730). On review of
this issue, we consider the evidence in the light most favorable to the judgment. (People
v. Williamson (1979) 90 Cal.App.3d 164, 172.) If we determine the trial court violated
section 654, the proper remedy is to stay execution of sentence on the count with the
lesser penalty. (People v. Beamon (1973) 8 Cal.3d 625, 639-640.)
       “Section 654 prohibits multiple punishment for a single physical act that violates
different provisions of law.” (People v. Jones (2012) 54 Cal.4th 350, 358, italics added.)
The question is whether defendant’s grabbing Jones around the neck and dragging her
constituted a single physical act. In the course of discussing count 2, the prosecutor told
jurors: “The act of choking Jolene Jones could account for more than one crime.… In
this particular case the choking could result in multiple charges like we have in this case,
okay.” The prosecutor then observed that the first element the People had to prove with
respect to count 3 was that defendant intentionally restrained or detained someone by
violence or menace. The prosecutor argued: “Ladies and gentlemen, if you take
somebody by the neck and grab them they didn’t go willingly, you detained them. They
didn’t go willingly, it was by violence. And the defendant made the other person stay or
go somewhere against the person’s will. How do we know in this case that Jolene Jones
did not go willingly with the defendant while he had her by the neck and was dragging

                                            21.
her throughout the apartment? It is quite simple. What did she tell you, and what did the
defendant tell you? Because when he had her and was taking her around the apartment
she was trying to get free, and with her hand she grabbed an object which turned out to be
a free standing mirror, and she whacked him in the head. There is the proof of it. She
was trying to get away. She was not going willingly.”
       The prosecutor argued the existence of a single physical act — choking Jones —
as the basis of multiple convictions. Under the circumstances, execution of sentence on
count 2 should have been stayed. (See, e.g., People v. McKinzie (2012) 54 Cal.4th 1302,
1368-1369; People v. Jones, supra, 54 Cal.4th at p. 359.) We modify the judgment to so
provide.
                                     DISPOSITION
       The conviction on count 1 is reversed. The judgment is modified to (1) stay
execution of sentence on count 2 pending completion of sentence on count 3, such stay
then to become permanent; (2) provide for imposition of an aggregate assessment of $120
pursuant to Penal Code section 1465.8; and (3) provide for imposition of an aggregate
assessment of $90 pursuant to Government Code section 70373. As so modified, the
judgment is affirmed. The trial court is directed to prepare an amended abstract of
judgment reflecting these changes and to forward a certified copy thereof to the
appropriate authorities.

                                                               _____________________
                                                                          DETJEN, J.
WE CONCUR:


 _____________________
 HILL, P.J.


 _____________________
 LEVY, J.


                                           22.
