Filed 10/17/14 P. v. Price 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065515
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF246681)
                   v.

CHERYL LYNN PRICE,                                                                       OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Brett R.
Alldredge, Judge.
         Linda J. Zachritz, 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, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Kane, J. and Detjen, J.
                                         INTRODUCTION
          After a jury trial, defendant Cheryl Lynn Price was convicted of two felony counts
of resisting an executive officer (Pen. Code,1 § 69), and one count of misdemeanor
battery on a peace officer (§ 243, subd. (b)). She was sentenced to two years, to run
concurrent to the term imposed in Tulare County Superior Court case No. VCF232931.
          On appeal, defendant contends her conviction for battery on a peace officer must
be reversed because the court failed to give the unanimity instruction to the jury. We will
affirm.
                                               FACTS
          On the evening of November 22, 2010, Deputy Karyse Sandoval booked
defendant in to the Bob Wiley Detention Facility in Bakersfield. Defendant cooperated
with the process until Sandoval said they were going to take her photograph. Defendant
became angry and refused to have her photograph taken. She yelled at Sandoval that
“she was going to take … no fucking picture.” Sandoval tried to calm defendant down,
but to no avail.
          Sergeant John Chabrajez heard the disturbance and approached defendant.
Chabrajez asked defendant to have her mug shot taken, and offered to only take one
instead of three separate pictures. Defendant cursed Chabrajez and said, “Fuck no, no
picture tonight.”
          Chabrajez noticed defendant had a small pencil in her left hand, which an officer
gave her to sign her paperwork. Chabrajez ordered defendant to drop the pencil and
place her hands behind her back. Defendant was angry, continued to yell, and did not
obey his orders. Defendant clenched the pencil tightly in her hand and walked toward
Chabrajez. Chabrajez stepped back and away from defendant.


1         All further statutory citations are to the Penal Code unless otherwise indicated.



                                                   2.
       Chabrajez and Sandoval ordered defendant to drop the pencil and place her hands
behind her back. Defendant ignored their orders, and continued to curse and
“aggressively” walk toward Chabrajez. Defendant pushed Chabrajez once or twice
against the wall.2
       Sandoval tried to grab defendant’s right arm to escort her into the processing
room. Defendant tried to swing her arm at Sandoval. Chabrajez grabbed defendant’s left
arm because he was concerned about the pencil. Defendant dropped her full weight to
the floor.
       Once defendant was on the floor, she was on her side and the officers ordered her
to roll on her stomach. Defendant refused. She was loud, angry and continued to yell
and curse. Chabrajez held onto defendant’s left arm, but defendant swung her right arm
and kicked Sandoval, who was trying to hold down her legs.
       Sandoval placed shackles on defendant’s legs and stayed on top of her. At some
point, Chabrajez was able to get the pencil out of defendant’s hand and it rolled away.
       As defendant continued to struggle, she grabbed Chabrajez’s right arm with her
fingernails, pulled his arm to her mouth, and bit the crease of his arm. Chabrajez yelled
that defendant was trying to bite him, and released defendant’s left arm to Sergeant
Doyle, who was trying to assist them. Additional deputies responded and eventually
subdued defendant.
       Chabrajez testified he suffered a couple of scratches and a laceration on his arm
when defendant bit him. The prosecution introduced photographs of his arm. Chabrajez
testified there was a small amount of blood on the laceration, which appeared to be a
slight puncture wound. The jail nurse cleaned the wound. He later went to the


2       The disturbance was captured on the detention facility’s surveillance camera. The
prosecutor introduced the videotape and played it for the jury, accompanied by Chabrajez’s
narration of the incident.



                                              3.
emergency room, where he was given a two-week course of antibiotics. He also filed a
workers’ compensation claim, received treatment from a physician, and was tested for
communicable diseases.
The charges and convictions
       Defendant was charged with count 1, felony battery on a peace officer, Chabrajez,
causing injury (§ 243, subd. (c)(2)). As we will discuss below, this count was based on
defendant’s act of biting Chabrajez on the arm. The jury was also instructed on two
lesser included offenses for count 1: battery on a peace officer without injury; and
battery, without requiring proof that Chabrajez was a peace officer performing his duties.
The jury did not receive the unanimity instruction for count 1.
       In addition, defendant was charged with counts 2 and 3, felony resisting an
executive officer by the use of force or violence. Count 2 was based on defendant’s
resistance of Chabrajez by shoving, biting, and/or swinging at him. The court granted the
prosecutor’s request to give the unanimity instruction for count 2, and the jury was
instructed that it could not find defendant guilty of that offense unless it agreed “the
People have proved that the defendant committed at least one of these acts and you all
agree on which act she committed.”3 Count 3 was based on defendant’s resistance of
Sandoval by kicking her. It was also alleged that defendant had one prior strike
conviction.
       Defendant was found not guilty of count 1 as charged, but guilty of the lesser
included offense of battery on a peace officer (§ 243, subd. (b)), which the court declared
to be a misdemeanor. She was found guilty of felony counts 2 and 3. The court found



3      During the instructional phase, the prosecutor requested the unanimity instruction for
count 2 because the charged and lesser included offenses could be based on any of three acts
when defendant shoved, swung at, or bit Chabrajez. Defense counsel concurred with the request,
and the court gave the instruction only as to count 2.



                                              4.
the prior strike conviction true, but subsequently dismissed it. The court sentenced
defendant to two years, to be served concurrently with the term imposed in another case.

                                      DISCUSSION

                         THE UNANIMITY INSTRUCTION
                        WAS NOT REQUIRED FOR COUNT 1
       Defendant contends the court had a sua sponte duty to give the unanimity
instruction for count 1 and the lesser included offenses for that charge. Defendant argues
that while her alleged act of biting Chabrajez may have been the basis for the charged
offense in count 1, there were multiple acts upon which the jurors could have relied to
find her guilty of the lesser included offense of battery on a peace officer, such as
shoving Chabrajez against the wall, swinging her arm at him, and/or biting him.
       Defendant acknowledges the unanimity instruction was given for count 2, resisting
Chabrajez, because the prosecutor relied on three different acts—shoving, swinging at, or
biting him. Defendant asserts the unanimity instruction should have been given for
count 1 because the jury could have relied on any of the same three acts to convict her of
the lesser included offense of battery on a peace officer without injury.
       As we will explain, the court was not required to give the unanimity instruction for
count 1 because the prosecutor used closing argument to make an election that count 1
and the lesser included offenses were based on defendant’s act of biting Chabrajez.
A.     Unanimity and an election
       “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.] 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. [Citations.] [¶] This requirement of
unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant



                                             5.
will be convicted even though there is no single offense which all the jurors agree the
defendant committed.’ [Citation.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
         A prosecutorial election may be accomplished by means of opening statement
and/or closing argument. (People v. Mayer (2003) 108 Cal.App.4th 403, 418-419;
People v. Hawkins (2002) 98 Cal.App.4th 1428, 1454-1455; People v. Diaz (1987) 195
Cal.App.3d 1375, 1382-1383.) The court has a sua sponte duty to instruct on unanimity
when no election has been made. (People v. Melhado (1998) 60 Cal.App.4th 1529,
1534.)
B.       Analysis
         In this case, the court did not have a sua sponte duty to give the unanimity
instruction for count 1 because the prosecutor clearly made an election in his closing
argument that the charged and lesser included offenses were based on defendant’s act of
biting Chabrajez.
         The prosecutor began his closing argument by explaining that count 1 was for
defendant’s commission of “battery on an officer causing injury and that is for biting
Sergeant Chabrajez.” The prosecutor reviewed the elements of count 1, and
acknowledged that a battery could be any sort of touching, including shoving or kicking,
but “because the charge is battery causing injury it is based on the defendant’s action of
biting Sergeant Chabrajez.” “In this case the biting is the primary basis for this charge
because that is what caused the injury.”
         The prosecutor further explained that count 1 required an injury, referred the jury
to the instructional definition of an injury, and argued it did not have to be life-
threatening or serious but “it has to be an injury.”4 The prosecutor asked the jury to



4       As to count 1, battery with injury, the jury was instructed an injury was “any physical
injury that requires professional medical treatment. The question whether an injury requires such
treatment cannot be answered simply by deciding whether or not a person sought or received


                                               6.
review the photographs of Chabrajez’s arm, and argued defendant’s act of biting him
inflicted puncture wounds, which constituted an injury since it required medical
treatment.
       The prosecutor also addressed the lesser included offenses for count 1, and
explained the greater offense was battery on a peace officer causing injury.

       “Now there is lesser include[d] that are within that, you can’t commit
       battery with injury on a peace officer without committing battery with
       injury and you also can’t commit battery with injury without committing a
       battery. So battery would be a lesser included of battery with injury which
       is also a lesser included [of] battery with injury on a peace officer, if that
       makes sense. [¶] … [¶]

              “If you decide that the defendant is not guilty of battery with injury
       on a peace officer then you can also deliberate on whether the defendant is
       guilty of battery with injury or just simple battery. But I am going to
       explain to you that the evidence shows the crimes that are charged. [¶] If
       the defendant is guilty she is guilty of the crimes that are charged and the
       evidence does show battery with injury on a peace officer. Sergeant
       Chabrajez was a peace officer, he was injured and so this wasn’t just a
       simple battery.”
       The prosecutor additionally discussed the elements of count 2, resisting an
executive officer as to Chabrajez. The prosecutor stated that count 2 was based on
defendant’s act of using force or violence when she shoved Chabrajez against the wall,
swung at him while he was trying to restrain her, and bit his arm. The prosecutor referred
the jury to the unanimity instruction for count 2, which stated that the jury could not find
the defendant guilty “unless you all agree that the People have proved that the defendant
committed at least one of these acts and you all agree on which act she committed,”
pushing, swinging, or biting Chabrajez. The prosecutor explained the jury had to
unanimously agree which of the acts was the basis for count 2. The prosecutor explained


treatment. You may consider all of those facts but you must consider this question based on the
nature, extent and seriousness of the injury itself.”



                                               7.
count 3, resisting Sandoval, was separately based on defendant’s act of kicking Deputy
Sandoval.
       In his closing argument, defense counsel acknowledged the prosecutor’s election
for count 1 and that the charge was based “most particularly” on defendant’s alleged act
of “just biting” Chabrajez. Defense counsel argued defendant was not guilty of count 1
because the surveillance videotape did not show defendant biting Chabrajez, the
photograph did not show any teeth marks on Chabrajez’s arm, and he was likely
scratched by the objects on the heavy belts worn by the other officers who were trying to
handcuff defendant. Defense counsel disputed the prosecutor’s claim that Chabrajez
suffered an injury simply because the scratch was cleaned at the emergency room,
particularly since the prosecutor never introduced any medical records. “So my argument
is that this is not an injury that was requiring medical attention.”
       The prosecutor thus clarified to the jury the offense charged in count 1, and
inherent in the lesser included offenses, was based on defendant’s act of biting Chabrajez
on the right arm, causing a puncture wound that required medical treatment. Defense
counsel acknowledged the election, but framed the disputed issues as to whether
defendant actually bit Chabrajez, and whether he suffered an injury within the meaning of
the instruction.
       Defendant argues that when the jury found her not guilty of battery causing injury,
and found her guilty of the lesser offense of battery, it could have based that conviction
on any of her three separate acts of shoving Chabrajez, swinging at him, or even biting
him. Defendant notes the prosecutor relied on these three separate acts in support of
count 2, which required the unanimity instruction, and argues the jury could have been
mistakenly believed that it could rely on any of those same three acts to find defendant
guilty of battery. Based on our review of closing argument, however, the prosecutor
clearly distinguished between count 1, based on defendant’s single act of biting



                                              8.
Chabrajez causing injury, and the accompanying lesser offenses, and count 2, which was
potentially based on the three separate acts and required unanimity.
       Given the nature of the election and arguments before the jury, defendant’s
conviction in count 1 for the lesser included offense of battery on a peace officer without
injury was based on the jury’s determination that defendant bit Chabrajez, but she did not
inflict an injury as defined by the instructions. The unanimity instruction was not
required.
                                     DISPOSITION
       The judgment is affirmed.




                                             9.
