Filed 9/27/13 P. v. Nwuzi CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038485
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. Nos. C1112821,
                                                                     C1121031)
         v.

CHINEDA EZENUATA NWUZI,

         Defendant and Appellant.



         A jury convicted defendant Chineda Ezenuata Nwuzi of false imprisonment (Pen.
Code, §§ 236, 2371; count 1), human trafficking (§ 236.1, subd. (a); count 2), criminal
threats (§ 422; count 3), and pandering (§ 266i, subd. (a)(2); count 4). He was sentenced
to a six-year prison term for count 4, with concurrent terms for counts 1 through 3.
         On appeal, defendant contends that the trial court erred by failing to instruct the
jury that it had to unanimously agree on which act constituted false imprisonment.
Defendant also contends that the imposition of separate punishment for counts 1
through 3 violated section 654. We conclude that a unanimity instruction was not
required. We also conclude that the trial court properly imposed separate terms for the
false imprisonment and criminal threats (counts 1 and 3), but violated section 654 by



         1
             All further statutory references are to the Penal Code unless otherwise indicated.
imposing separate punishment for human trafficking (count 2). We will therefore modify
the judgment to stay the term for human trafficking.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Melissa Doe was 21 years old when she moved from Texas to California to live
with her boyfriend at his mother‘s home. Melissa had to leave the home when her
boyfriend went to prison and she did not get along with his mother. For a month
thereafter, she stayed with various friends.
       On June 11, 2011, Melissa was at a bus stop in downtown San Jose waiting for a
friend to pick her up. Two men in a vehicle pulled up to the bus stop. The driver,
defendant, asked Melissa what she was doing. She replied that she was waiting for her
friend. Defendant offered to take her to her friend‘s house. He also offered her
marijuana. Melissa accepted and got into defendant‘s car. Shortly thereafter defendant
dropped off the male passenger.
       Melissa‘s friend was not answering her phone at the time. Defendant suggested
that Melissa could pick up her belongings, which were at another friend‘s home, and go
to a motel room until her friend responded to her calls. He said that he could drop her off
at her friend‘s home later. Melissa agreed.
       The two picked up Melissa‘s belongings and then drove to a Safeway. There,
defendant met with his female friend, Nemyah Wyatt. The three of them got into Wyatt‘s
car and drove around the city to get a cell phone. After purchasing a phone, they returned
to defendant‘s car. For the next hour to an hour and a half, Melissa sat alone in
defendant‘s car while defendant and Wyatt worked on a laptop in Wyatt‘s car.
       The three then went to a Motel 6, where Wyatt used her identification to rent a
room. Wyatt left shortly thereafter. In the room, defendant and Melissa smoked
marijuana, and she took a sip of alcohol. Melissa took a shower, changed into her
pajamas, and sat on one of the beds.



                                               2
       Defendant called Wyatt several times, demanding money. After the phone
conversations, defendant became angry and told Melissa that she owed him money for
the motel room. He told her that she was going to pay him back by selling her body for
money. He set up online ads using a picture of someone who looked like Melissa and
identified her as ―Sallysmits.‖ The ad generated several calls, one of which was from
San Francisco. Defendant told Melissa she needed to go to San Francisco to make
money. Defendant was much larger in stature and used a demanding tone with her. She
got in the car with defendant because she was scared of him.
       Defendant drove Melissa to a San Francisco gas station, where he told her to get
out of the car and wait on the corner for a man. He told her that he expected her to have
sex with the man and earn money. He gave her a breakdown of prices she should charge
for various sexual acts.
       A man drove up to the corner and asked Melissa if she was Sally Smith. She said
―[n]o‖ and the man drove away. Melissa returned to defendant‘s car, and defendant
asked her why the man drove off. Defendant was angry. On the way back to the motel,
defendant pulled over to the side of the road, opened the door, and told Melissa to get out
of the car. He told her that she needed to get him money ―or there was going to be
consequences.‖ He spoke to her in a ―[v]iolent‖ tone. She asked if he could at least drive
her back to San Jose. He agreed and he took her back to the motel room. They both went
back to the room and slept on separate beds.
       Defendant woke Melissa up at 11:00 a.m. the next morning. He showed her
missed calls on the new cell phone and told her that she was ―sleeping money away.‖ He
forced her to answer some calls and told her what to say on the phone. With defendant
listening on the phone next to her, she set up meetings with some of the callers for later
that afternoon.
       Defendant looked through Melissa‘s bag and picked out a skirt and a see-through
tank top for her to wear. Melissa told defendant that she did not want to wear that outfit,

                                               3
but defendant responded that she was being disrespectful and that she was going to wear
the outfit because she could ―make a lot of money in it.‖ He then grabbed her by her
arms and threw her on the bed.
       Defendant climbed into bed with Melissa and offered to give her a massage. She
told him she did not want a massage. He got on top of her, told her that he wanted to
have sex, and started ―dry humping‖ her. Around the same time, he touched himself in
front of Melissa with his genitals exposed. He also touched her breast over her clothes
and asked her to ―jack him off.‖ She told him to stop several times, but he did not stop
until she ―got serious‖ and said, ―Get off me . . . I‘m not playing.‖ Defendant got off
Melissa and said ―Bitch I didn‘t even want you.‖ He took a three to four-minute shower.
Melissa gathered her belongings at that time, and she noticed that her bus ticket and her
cell phone were missing.
       When defendant got out of the shower, Melissa asked him about the bus ticket and
cell phone. Defendant became angry and told Melissa that she owed him double the
money because he had rented the room for two nights. He also mentioned that she owed
him for the phone and for the marijuana, which she had been smoking. He estimated that
she owed him about $500. He told her that she was going to get him his money or she
was a ―dead white bitch‖ and that girls who took his money had disappeared and never
been heard from again. He said he knew ―hitters,‖ which she understood to mean
―people that kill you.‖
       At some point, Melissa walked towards the motel room door and told defendant
―I‘ll just leave, then.‖ Defendant stood in front of her and said, ―No you won‘t. Until I
get the money you owe me, you‘re not going nowhere.‖
       Defendant then received a phone call from Wyatt, and they began arguing on the
phone. Melissa realized that defendant was not paying attention to her and she told him
she was going out to get more shampoo. She left the room and ran to the front office.



                                             4
Crying, she told the motel clerk that a man was trying to sell her. She asked the clerk to
call the police.
       The police arrived and searched defendant‘s motel room, where they seized a
laptop and cell phone. Melissa‘s bus ticket was found in the trunk of defendant‘s car.
The laptop contained photos of Wyatt taken for a prostitution service website. The laptop
also contained ads for ―Sally Smits,‖ which had been paid for by defendant. The ads
offered sexual services for money. The cell phone contained text messages regarding
arrangements for sexual services.
       At trial, defendant presented no witnesses on his behalf. During argument to the
jury, he questioned whether Melissa was ―really held against her will‖ and suggested that
she chose to go to San Francisco with him and chose to stay in the motel room with him.
       The jury found defendant guilty of all four charged counts: false imprisonment
(count 1), human trafficking (count 2), criminal threats (count 3), and pandering
(count 4). Additionally, the trial court found true two prior prison term allegations.
(§ 667.5, subd. (b).)
       The trial court sentenced defendant to the six-year upper term on count 4, a
concurrent five-year upper term on count 2, a concurrent three-year upper term on
count 3, and a concurrent three-year upper term on count 1. The court imposed two
consecutive one-year terms for the prior prison term allegations, for an aggregate prison
term of eight years.2



       2
        In case No. C1121031, as to which no issues are raised on appeal, defendant
pleaded no contest to pimping a minor over the age of 16 (§ 266h, subd. (b)(1); count 1),
procuring a minor over the age of 16 for prostitution (§ 266i, subd. (b)(1); count 2), and
employing a minor in performing sexual conduct (§ 311.4, subd. (c); count 3). The trial
court sentenced defendant on that case at the same time as it imposed sentence in case
No. C1112821, imposing a consecutive term of one year, four months on count 1, a
concurrent term of four years on count 2, and a concurrent term of two years on count 3.
The total combined term imposed for both cases was nine years, four months.

                                             5
                                      DISCUSSION
A.     Unanimity Instruction
       Defendant argues that the trial court erred by failing to give a unanimity
instruction as to count 1, in which he was convicted of false imprisonment. (See
CALCRIM No. 3500.3)
       Defendant claims the evidence showed three separate incidents upon which the
jury could have based the false imprisonment conviction: (1) driving Melissa to San
Francisco, (2) grabbing Melissa‘s arms and throwing her on the bed, and (3) blocking her
from leaving the motel room. Defendant contends that the trial court should have
instructed the jury that it was required to unanimously agree on which act constituted
false imprisonment. As we shall explain, we disagree that a unanimity instruction was
required, and we find that any error was harmless.
       1.     Legal Principles
       The jury verdict in a criminal case must be unanimous. (People v. Russo (2001)
25 Cal.4th 1124, 1132.) When a defendant is charged with a single criminal act and the
evidence shows more than one such unlawful act, the prosecution must either elect which
act to rely upon, or the jurors must be given a unanimity instruction telling them they
must agree on which act constituted the crime. (People v. Thompson (1995) 36
Cal.App.4th 843, 850.)
       However, the trial court has no sua sponte duty to instruct on unanimity if the
defendant‘s multiple acts constitute a single continuous course of conduct— that is, if his
or her acts are ―so closely connected in time as to form part of one transaction.


       3
        CALCRIM No. 3500 provides: ―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 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.‖

                                             6
[Citations.]‖ (People v. Maury (2003) 30 Cal.4th 342, 423 (Maury).) ―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.
[Citation.]‖ (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
       2.     The False Imprisonment Conviction Could Not Have Been Based on the
              San Francisco Incident
       We first address defendant‘s claim that the jury could have based the false
imprisonment conviction on defendant‘s act of driving Melissa to San Francisco against
her will. As we shall explain, the prosecutor made it clear that she was not relying on
that act for the false imprisonment charge.
       During argument to the jury, the prosecutor specified that the false imprisonment
charge was based on the events that occurred in the motel room the day after defendant
and Melissa went to San Francisco. The prosecutor referred to the argument between
defendant and Melissa regarding her outfit: ―And [Melissa‘s] response to that was ‗Well,
I‘ll just leave then.‘ And that‘s when she said she started walking toward the door. And
he stood in front of her, and he blocked her path. [¶] And he said, . . . ‗No, you won‘t.
Until I get the money you owe me, you‘re not going nowhere.‘ [¶] That is the crime of
false imprisonment. That is why he‘s guilty. He blocked her from leaving there. [¶]
And then she said that he grabbed her and he threw her on the bed. So now he is using
violence to keep her in a room against her will. That is why he‘s charged with false
imprisonment. That is why he‘s guilty of false imprisonment.‖
       Defendant did not address any of the individual charges during his argument.
Instead, he challenged Melissa‘s overall credibility and argued that Melissa had gone to
San Francisco with defendant and stayed in the hotel room not because she was ―really
held against her will,‖ but because ―[s]he chose.‖
       In her closing argument, the prosecutor reminded the jury that defendant had
―blocked [Melissa‘s] way when she tried to get out of the room when they got into the

                                              7
argument about what clothing she was going to wear and that he grabbed her by her arms
and he threw her down on the bed.‖ The prosecutor argued: ―You cannot dispute that he
is holding her against her will when she tried to leave that room.‖ The prosecutor also
addressed the defense suggestion that Melissa had willingly gone to San Francisco:
―Now, I could make the argument that when he took her to San Francisco, maybe that
was a false imprisonment. That‘s up to you to decide. You might think that‘s a little bit
more ambiguous. But there is nothing ambiguous about him blocking her from leaving
the door when she wanted to get out of there.‖
       A reasonable juror would not have understood the prosecutor to be relying on the
San Francisco incident as the basis for the false imprisonment charge. The prosecutor
―clearly communicated‖ that the false imprisonment charge was based on defendant‘s
acts of blocking Melissa from leaving the motel room and throwing her on the bed. (See
People v. Melhado (1998) 60 Cal.App.4th 1529, 1539; People v. Jantz (2006) 137
Cal.App.4th 1283, 1292 [prosecutor ―clearly informed‖ the jury as to which acts she was
basing a criminal threats offense].) This election ensured that no jurors would vote to
convict defendant of false imprisonment based on the San Francisco incident.
       3.     Continuous Course of Conduct
       Defendant claims that some jurors could have based the false imprisonment
conviction on defendant‘s act of blocking Melissa‘s exit from the hotel room, while
others could have concluded he was guilty of false imprisonment because he grabbed her
and threw her onto the bed. Although the prosecutor did refer to both of these acts during
her argument to the jury, we conclude that no unanimity instruction was necessary
because the evidence established that the two acts were so closely connected that they
constituted a ―continuous course of conduct.‖ (Maury, supra, 30 Cal.4th at p. 423.)
       The California Supreme Court has held that no unanimity instruction was required
when the defendant was charged with one rape but the victim testified to two separate
acts of rape, based on the ― ‗single course of conduct‘ ‖ rule. (People v. Champion

                                             8
(1995) 9 Cal.4th 879, 931 (Champion), quoting People v. Beardslee (1991) 53 Cal.3d 68,
93.) In Champion, the defendant raped the victim in the bathroom, left, then returned
shortly thereafter to rape her again. The court explained why a unanimity instruction was
unnecessary: ―[The defendant] offered no evidence tending to show that he committed
one of the rapes but not the other; rather, his counsel argued that he did not participate in
any of the crimes occurring in the [victim‘s] home. Thus, once a juror determined that
[the defendant] committed one of the two rapes, it is inconceivable that the juror would
not also conclude that [the defendant] also committed the second rape of the same
victim.‖ (Champion, supra, at p. 932.)
       In this case, defendant restrained Melissa by grabbing her and throwing her on the
motel room bed, and then, shortly thereafter, by blocking her from leaving the motel
room. The two acts were closely connected in time, location, and objective. Defendant
did not offer any evidence tending to show that he committed one of those acts but not
the other, and thus there was no basis upon which any juror would have found that
defendant did not commit both acts. (Cf. Champion, supra, 9 Cal.4th at p. 932.) Thus,
the two acts of false imprisonment were a part of a ―continuous course of conduct,‖ and
no unanimity instruction was required. (Maury, supra, 30 Cal.4th at p. 423.)
       4.     Harmless Error
       Even assuming that the trial court should have given the jury a unanimity
instruction as to the false imprisonment charge, any error was harmless under the
circumstances, whether assessed under the standard for constitutional violations
(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)) or the standard for state law
error (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)). (See People v. Wolfe
(2003) 114 Cal.App.4th 177, 185-186 (Wolfe) [noting split in authority].)
       ―The erroneous failure to give a unanimity instruction is harmless if disagreement
among the jurors concerning the different specific acts proved is not reasonably
possible.‖ (People v. Napoles (2002) 104 Cal.App.4th 108, 119, fn. omitted.) ―[S]uch

                                              9
disagreement is unlikely [when] the true issue in the case was a single credibility
dispute.‖ (Id. at p. 120.)
       Here, defendant ―presented a unitary defense‖ with respect to all of the acts that
could have constituted the false imprisonment charge. (See Wolfe, supra, 114
Cal.App.4th at p. 188.) His defense was simply a challenge to Melissa‘s credibility: he
argued that Melissa was never held against her will, but rather chose to go to San
Francisco and stay in the motel room with him. The jury obviously believed Melissa,
however. (See ibid.) Once the jurors determined that Melissa was not staying with
defendant by choice, none of them would have had a reasonable doubt that defendant
committed the acts of false imprisonment that she described. (See ibid.) In particular, as
the prosecutor emphasized in her closing argument, defendant could not dispute that ―he
blocked her way when she tried to get out of the room . . . and that he grabbed her by her
arms and he threw her down on the bed. . . .‖
       Therefore, on this record, it is not reasonably probable that a different result
would have been reached if the jury had been given a unanimity instruction (Watson,
supra, 46 Cal.2d at p. 836), and any error in the trial court‘s failure to give such an
instruction was harmless beyond a reasonable doubt (Chapman, supra, 386 U.S. at p. 24).
B.     Section 654
       Defendant contends that the trial court violated section 654 by imposing separate
concurrent terms for the false imprisonment, human trafficking, and criminal threat
convictions. He argues that he committed all four offenses for the sole purpose of
inducing Melissa to become a prostitute (i.e., pandering).4 As we shall explain, we agree
that defendant was improperly punished for both pandering and human trafficking, but



       4
        A person is guilty of pandering if he or she, ―[b]y promises, threats, violence, or
by any device or scheme, causes, induces, persuades, or encourages another person to
become a prostitute.‖ (§ 266i, subd. (a)(2).)

                                              10
we determine that section 654 did not bar separate punishment for false imprisonment
and criminal threats.
       1.       Legal Principles
       Subdivision (a) of section 654 provides that ―[a]n 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
of the statute is to ensure that the punishment is commensurate with the defendant‘s
culpability. (People v. Perez (1979) 23 Cal.3d 545, 550-551 (Perez).)
       ―The proscription against double punishment in section 654 is applicable where
there is a course of conduct which violates more than one statute and comprises an
indivisible transaction punishable under more than one statute within the meaning of
section 654. The divisibility of a course of conduct depends upon the intent and
objective of the actor, and if all the offenses are incident to one objective, the defendant
may be punished for any one of them but not for more than one.‖ (People v. Bauer
(1969) 1 Cal.3d 368, 376 (Bauer).) ―On the other hand, if the evidence discloses that a
defendant entertained multiple criminal objectives which were independent of and not
merely incidental to each other, he [or she] may be punished for the independent
violations committed in pursuit of each objective even though the violations were parts
of an otherwise indivisible course of conduct.‖ (Perez, supra, 23 Cal.3d at p. 551,
fn. omitted.)
       ―Whether section 654 applies in a given case is a question of fact for the trial
court, which is vested with broad latitude in making its determination.‖ (People v. Jones
(2002) 103 Cal.App.4th 1139, 1143.) On appeal we defer to express or implicit
determinations that are based upon substantial evidence. (Cf. People v. Osband (1996)
13 Cal.4th 622, 730-731.)



                                             11
         2.     Analysis
         Claiming that all of the offenses were incident to the sole objective of inducing
Melissa to engage in prostitution, defendant claims he may be punished for only one
offense. We disagree. Although defendant‘s overarching aim may have been to induce
Melissa into prostitution, the record supports the trial court‘s implied determination that
in committing the pandering, false imprisonment and criminal threats offenses, defendant
―entertained multiple criminal objectives which were independent of and not merely
incidental to each other,‖ such that he could be separately punished. (Perez, supra, 23
Cal.3d at p. 551.)
         We first review the factual basis for each conviction. The pandering and human
trafficking charges were based on numerous acts that defendant committed over the two-
day period. The prosecutor argued that there were ―so many things‖ defendant did to
encourage Melissa to become a prostitute, then listed numerous acts, including:
(1) saying ―he was going to kill her if she didn‘t work for him and make him money,‖
(2) forcing her ―to take a phone call from a john,‖ (3) driving her to San Francisco to
meet another man, (4) showing her the ads that he posed online, and (5) telling her how
much to charge for sex acts. The prosecutor also argued that defendant did ―several
things‖ to deprive Melissa of her personal liberty, as required for a human trafficking
conviction: (1) telling her what to wear and throwing her on the bed when she argued
with him about it, (2) getting on top of her, exposing his penis, grabbing her breast, and
telling her to ―jack him off,‖ (3) stealing her bus ticket and cell phone, (4) blocking her
path, and (5) threatening to kill her if she did not make him money.
         The prosecutor argued that the false imprisonment charge was based on
defendant‘s act of blocking Melissa from leaving the hotel room and his act of grabbing
her and throwing her on the bed – his use of ―violence to keep her in a room against her
will.‖



                                              12
        The prosecutor argued that the criminal threat charge was based on defendant‘s
statement that Melissa was ― ‗going to get him his money or [she would be] a dead white
bitch.‘ ‖ The prosecutor argued that this threat was ―designed to threaten her and to scare
her.‖
        As argued by the prosecutor, defendant had multiple objectives in committing the
false imprisonment and criminal threats. Defendant‘s overarching objective was to
induce Melissa into prostitution, but he had additional objectives that made separate
punishment permissible. Defendant‘s additional objective in committing the false
imprisonment was to keep Melissa in the hotel room, and his additional objective in
threatening Melissa was to instill fear in her. Although keeping Melissa in the hotel room
and making her fearful may have made it more convenient for defendant to continue
inducing her to become a prostitute, neither objective was necessary to the pandering.
(See People v. Kwok (1998) 63 Cal.App.4th 1236, 1257 [burglary to obtain key to
victim‘s apartment made it ―more convenient and less risky‖ for the defendant to commit
later burglary and assault, but ―it was not a necessary or integral part of the subsequent
offenses‖].) Moreover, in this case, where defendant committed multiple offenses over a
two-day time period, applying ―the ‗one intent and objective‘ test‖ would ―defeat[] its
own purpose‖ because it would not ensure that defendant‘s punishment is commensurate
with his culpability. (Id. at p. 1253.)
        We conclude substantial evidence supports the trial court‘s finding that defendant
had separate criminal objectives in committing the false imprisonment and criminal threat
offenses, and thus that section 654 does not prohibit separate punishment for those
convictions.
        However, we do agree that the term for count 2, human trafficking, should have
been stayed because it was based on the same course of conduct as the pandering charge.
The trial court instructed the jury, pursuant to CALCRIM No. 1243, that to prove
defendant was guilty of human trafficking, it had to find that he ―either deprived Melissa

                                             13
Doe of personal liberty or violated her personal liberty‖ and ―intended to obtain forced
labor or services or commit or maintain a felony violation of Penal Code Section 266i
(pandering).‖ Pursuant to CALCRIM No. 1151, the trial court instructed the jury that in
order to prove defendant was guilty of pandering, it had to find that he ―used promises or
threats or violence to cause, persuade, encourage, or induce Melissa Doe to become a
prostitute‖ and ―intended to influence Melissa Doe to become a prostitute.‖ During
argument to the jury, the prosecutor told the jury that those two offenses were
―connected,‖ stating: ―Because for human trafficking – for that crime, it requires that the
defendant violated Melissa‘s personal liberty . . . to obtain forced labor or commit a
felony, and the felony is pandering . . . pandering is an element of the human trafficking
charge.‖
       Based on the evidence in the record, we conclude that the human trafficking and
pandering charges were based on an indivisible course of conduct. (See Bauer, supra,
1 Cal.3d at p. 376.) Thus, the punishment for the human trafficking conviction should
have been stayed pursuant to section 654.
                                     DISPOSITION

       The judgment is modified to stay the sentence for human trafficking (count 2)

pursuant to Penal Code section 654. As modified, the judgment is affirmed.




                                             14
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MÁRQUEZ, J.




                                    15
