Filed 2/3/14 P. v. Guerrero CA4/1
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                     COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                    DIVISION ONE

                                            STATE OF CALIFORNIA

THE PEOPLE,                                                          D063504

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. SCD238995)

CHRISTIAN GUERRERO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, David M.

Gill, Judge. Affirmed.



         James R. Bostwick, Jr., under appointment by the Court of Appeal for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and

Kimberly A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

         A jury convicted Christian Guerrero of evading a police officer with reckless

driving (count 1), driving under the influence of alcohol (count 2), and driving with a blood
alcohol content of .08 percent or higher (count 3). He appeals, contending: (1) his

conviction on count 1 should be reversed because the trial court failed to give a unanimity

instruction; and (2) the trial court should have stayed his sentence on either count 2 or

count 3 under Penal Code section 654. (Undesignated statutory references are to the Penal

Code.) We reject Guerrero's arguments and affirm the judgment.

                    FACTUAL AND PROCEDURAL BACKGROUND

       Around 5:43 p.m. on an evening in January 2012, Officers Jacob Resch and Errick

Barnes observed Guerrero making an illegal U-turn. The officers followed Guerrero's

vehicle and attempted to initiate a traffic stop. Guerrero did not stop and a high-speed

chase ensued. During the chase, Guerrero nearly struck a vehicle pulling out of a parking

spot, failed to stop at stop signs and lights, accelerated to over 100 miles per hour, and

swerved into oncoming lanes of traffic. Officers Resch and Barnes terminated their pursuit

because it was unsafe for them and the general public. The officers began to make their

way to the address of the registered owner of the vehicle.

       Around the same time, Officer Trevor Riley and Officer Tristan Gonzales, who

were part of the San Diego Police Department Airborne Law Enforcement (ABLE)

helicopter unit, also headed toward the address of the vehicle's owner. As they were on

their way to that address, they received information that other patrol officers had spotted

the vehicle in southeast San Diego. Thus, the ABLE officers responded toward the

location of the vehicle.

       Officers Jeffrey Skiba and Miguel Garcia were on patrol in southeast San Diego and

heard the radio call regarding the vehicle Officers Resch and Barnes were pursuing.

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Around 6:05 p.m., Officers Skiba and Garcia spotted the vehicle and attempted to stop it.

Guerrero sped up and drove away from the officers. Officers Skiba and Garcia continued

to follow Guerrero as he drove erratically. During that time, the ABLE officers were also

following Guerrero's vehicle and filming the pursuit. When Guerrero entered a freeway

on-ramp, Officers Skiba and Garcia lost sight of him; however, the ABLE officers

maintained visual contact.

       Guerrero's vehicle eventually broke down in the middle of an intersection. Two

officers who arrived at the scene detained Guerrero and then turned over custody to

Officers Resch and Barnes who transported Guerrero to police headquarters. Guerrero

refused breath and blood tests. Thus, he was subjected to a forced blood draw. Guerrero's

blood measured a blood alcohol concentration of .16 percent.

       Guerrero's sister testified that he had trouble hearing. However, a district attorney

investigator who had interviewed Guerrero's sister the day before, testified that she stated

Guerrero had no problems hearing. Instead, Guerrero's sister had described his hearing as

"selective hearing."

                                       DISCUSSION

                                  I. Unanimity Instruction

       Guerrero argues that his conviction on count 1 for evading a police officer with

reckless driving should be reversed because the court failed to give the jury a unanimity

instruction. Specifically, he contends the instruction was required because there was

evidence of two possible incidents of evading a police officer, one involving the pursuit by

Officers Resch and Barnes and the other involving the pursuit by Officers Skiba and

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Garcia. He claims the jurors may not have agreed as to which of those incidents

constituted the act of evading officers. We reject this argument.

       A defendant's constitutional right to a unanimous jury verdict requires that when the

evidence shows more than one unlawful act that could support a single charged offense, the

prosecution must either elect which act to rely upon or the trial court must sua sponte give

a unanimity instruction telling the jurors they must unanimously agree which act

constituted the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The

unanimity instruction is designed to eliminate the danger that the defendant will be

convicted even though there is no single offense which all the jurors agreed the defendant

committed. (Ibid.)

       No unanimity instruction is required, however, when the offense involves a

continuous course of conduct; i.e., when the acts are "substantially identical in nature, so

that any juror believing one act took place would inexorably believe all acts took place[.]"

(People v. Champion (1995) 9 Cal.4th 879, 932, internal quotes omitted.) The continuous

conduct rule also applies when a defendant offers essentially the same defense to each of

the acts, and there is no reasonable basis for jurors to distinguish between them. (People v.

Stankewitz (1990) 51 Cal.3d 72, 100.)

       Here, the court was not required to give a unanimity instruction. The evidence

showed that approximately 39 minutes elapsed between the time Guerrero made an illegal

U-turn that initiated the officers' pursuit and the time that he was taken into custody. The

pursuit was only interrupted because Guerrero entered a freeway with heavy traffic and

Officers Resch and Barnes determined it was unsafe to proceed. The chase, however,

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picked up again less than 20 minutes later when Officers Skiba and Garcia spotted

Guerrero's vehicle. During both portions of the chase, Guerrero drove erratically and sped

away from officers pursuing him. The two segments of the pursuit were sufficiently

closely connected in time and place to form one transaction and thus fall under the

continuous course of conduct exception to the unanimity instruction rule. (People v.

Crandell (1988) 46 Cal.3d 833, 875.)

       Even if were to conclude that the unanimity instruction should have been given in

this case, the court's failure to give the instruction was not prejudicial. There is a split of

authority on whether the standard of prejudicial error is that standard outlined in Chapman

v. California (1967) 386 U.S. 18, 24 (Chapman) or that outlined in People v. Watson

(1956) 46 Cal.2d 818. (People v. Smith (2005) 132 Cal.App.4th 1537, 1545.) Applying

the more stringent standard of Chapman, we conclude the error in this case was harmless

beyond a reasonable doubt. Failure to give a unanimity instruction is harmless if the record

provides no rational basis for the jury to distinguish between the various acts, and the jury

must have believed beyond a reasonable doubt that the defendant committed all acts if he

or she committed any. (People v. Deletto (1983) 147 Cal.App.3d 458, 473.) "Where the

record indicates the jury resolved the basic credibility dispute against the defendant and

therefore would have convicted him of any of the various offenses shown by the evidence,

the failure to give the unanimity instruction is harmless." (People v. Thompson (1995) 36

Cal.App.4th 843, 853.) "[U]nder the mandate of Chapman . . . we must ultimately look to

the evidence considered by defendant's jury under the instructions given in assessing the



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prejudicial impact or harmless nature of the error." (People v. Harris (1994) 9 Cal.4th 407,

428.)

        Guerrero's two attempts to evade police officers were so closely connected in time

and place and substantially identical in nature such that any error in failing to give the

unanimity instruction was harmless. The evidence supporting each act was nearly the

same. The officers testified that during both segments, Guerrero drove evasively and sped

away when they attempted to stop him. Officers identified the same vehicle and driver

during both segments.

        Guerrero's defense that he was not the driver during the first segment and could not

hear officers during the second segment is not supported by the record. To the contrary,

Officer Barnes stated that he saw Guerrero "face-to-face" during the first segment of the

pursuit and identified him as the driver. Officer Resch also identified Guerrero as the

driver and stated that the area was "fairly well lit by sunlight" when he first observed the

vehicle. Guerrero was the only person in the vehicle when it was finally stopped after the

second segment of the chase. Additionally, the only evidence supporting Guerrero's

hearing impairment defense came from his sister who had previously stated he did not have

a hearing problem. The hearing impairment defense was also contradicted by testimony

from officers who stated that based on Guerrero's reactions, they did not believe he was

deaf.

        On this record, we conclude any error in failing to give a unanimity instruction was

harmless beyond a reasonable doubt.



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                                       II. Section 654

       On count 2 and count 3 for driving under the influence of alcohol and driving with a

blood alcohol content of .08 percent or higher, respectively, the trial court placed Guerrero

on probation for a period of five years. Guerrero argues the trial court should have stayed

his punishment on one of those counts under section 654. Specifically, he contends a stay

is required because both convictions could potentially be used to enhance a future driving

under the influence charge. We reject Guerrero's argument.

       Guerrero bases his argument on People v. Duarte (1984) 161 Cal.App.3d 438

(Duarte). In that case, the defendant was convicted of driving under the influence and

causing bodily injury and driving with a blood alcohol level of .10 or more and causing

bodily injury. (Id. at p. 440.) Both convictions arose from a single act of drunk driving.

(Ibid.) The Court of Appeal affirmed the convictions, but expressed concern that although

defendant's sentence on the second conviction was stayed under section 654, there was a

risk that both convictions might be used to enhance future punishment. (Duarte, supra, at

p. 447.) The court reasoned: "Having suffered two convictions and one punishment,

defendant remains exposed to the use of the two convictions to enhance future punishment.

The Vehicle Code contains an increasing number of sections which penalize recidivism.

These sections ordinarily refer to prior 'convictions' without qualifying them to exclude

multiple convictions arising from a single driving occasion. By only staying punishment

on one of the two convictions, another court at another time may have to determine

whether the defendant has one or two 'priors[.]' " (Id. at p. 447.) To avoid multiple

enhancements based on a single act of illegal driving, the court modified the judgment by

                                              7
ordering that "the use of the [second] conviction . . . as a prior conviction for penal and

administrative purposes, be stayed. . . ." (Id. at p. 448.)

       While we agree with the basic premise of Duarte, we disagree that it is necessary or

appropriate in this case to stay the punishment on count 2 or count 3 under section 654.

Unlike the defendant in Duarte, Guerrero received probation. "Probation is an act of grace

and clemency designed to allow rehabilitation [citations] and is not within the ambit of the

double punishment proscription of . . . § 654." (People v. Stender (1975) 47 Cal.App.3d

413, 425.) The multiple punishment prohibition of section 654 only becomes relevant in

the event of a probation violation. (People v. Wittig (1984) 158 Cal.App.3d 124, 137.)

       If Guerrero is convicted of a future offense and his current offenses are utilized to

enhance his punishment, he can assert an argument that both convictions cannot be used at

that time.

                                        DISPOSITION

       The judgment is affirmed.

                                                                               McINTYRE, J.

WE CONCUR:


BENKE, Acting P. J.


HALLER, J.




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