Filed 3/28/13 P. v. Blyman CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064029
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F09903834)
                   v.

STEPHEN DANIEL BLYMAN,                                                                   OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
         John F. Schuck, 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, Eric L. Christoffersen and Ivan
P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
        A jury convicted appellant Stephen Daniel Blyman of robbery, assault with a
firearm, and criminal threats. He challenges his convictions on two grounds. First, the
trial court erred prejudicially in excluding from evidence the videotaped pretrial
interviews of his girlfriend and partner in the criminal activity, Candice Bradshaw, who
testified against him at trial. Second, Blyman contends instructional error requires
reversal of the criminal threats conviction because the trial court failed sua sponte to
instruct the jury with a unanimity instruction.
        We reject his contentions and affirm the judgment.
                    FACTUAL AND PROCEDURAL SUMMARY
        On June 20, 2009, Miguel Urbano withdrew $470 from an ATM machine. As he
walked back to his truck, Blyman and Bradshaw approached from behind. Blyman
brandished a gun and said, “Open the door, don’t do anything or I’ll blow your head off.”
Bradshaw told Urbano, “It’s better that you do it because I know him and he will blow it
off.”
        Blyman and Bradshaw forced Urbano into the truck and told him to drive them
down an alley to a nearby store. Once there, Blyman pointed the gun at Urbano’s head
and demanded money. Urbano handed over the money in his wallet, but would not turn
over the wallet itself. Blyman yelled, “I’m going to blow your head off, mother fucker,”
then he lowered the gun and shot Urbano in the knee. Blyman and Bradshaw fled on
foot.
        Blyman and Bradshaw returned to an apartment, where they divided the money.
The two then went to a store to purchase soda, cigarettes, chips, and “accessories” for the
gun. Later, on the television news, Bradshaw learned that she and Blyman were wanted
by the police. Blyman told Bradshaw to cover up his involvement in the criminal
activity.
        After the two were arrested, Bradshaw wrote to Blyman, complaining he had
cheated on her with other women. Bradshaw eventually pled guilty to robbery and other

                                             2.
offenses in exchange for a six-year prison sentence. The terms of her agreement required
her to testify truthfully at Blyman’s trial. Before she testified, Blyman told Bradshaw to
fabricate her testimony and tell the jury there had been a struggle between Urbano and
her and that Blyman was trying to save her.
       At trial Bradshaw testified that on June 20, 2009, she dressed like a prostitute and
walked up and down the street as part of Blyman’s and her plan to rob somebody.
Urbano stopped and propositioned her for sex. Bradshaw got in Urbano’s truck and they
drove down the alley and parked behind a store. Following their plan, Blyman
approached the truck, robbed Urbano at gunpoint, and shot him in the knee.
       Blyman also testified at trial. He admitted that in May 2008 he was convicted of
felony assault. In June 2009, he was on probation. Blyman stated he was in a romantic
relationship with Bradshaw, but conceded he had been cheating on her. He claimed that
on June 20, 2009, he was carrying a gun for protection, even though he knew he was not
allowed to carry a gun. He was not looking to rob anyone.
       As Blyman walked by the alley, he saw two people fighting and heard Bradshaw’s
voice say, “Get off of me.” Blyman ran down the alley and “grabbed the dude.” The two
men struggled for the gun and it went off accidentally. Blyman did not take the man’s
money and never threatened him.
       Blyman claimed he lied in his original statements to police when he admitted
taking Urbano’s money. He lied to protect Bradshaw. He did admit he tried evading
police and, when officers came to arrest him, he tried to run away.
       On November 16, 2011, the jury convicted Blyman of all three counts: count 1,
robbery, count 2, assault with a firearm, and count 3, criminal threats. The jury also
found true that Blyman used and discharged a firearm in count 1, used a firearm in counts
2 and 3, and inflicted great bodily injury in count 2.
       The trial court sentenced Blyman to a total term of 30 years to life in prison.



                                              3.
                                      DISCUSSION
I.     Exclusion of Videotapes
       Admittedly, Bradshaw told several different stories to police about the events.
First, she claimed Urbano was giving her a ride home when two unknown men
approached and committed the robbery. Next, Bradshaw claimed that a man named
Kenyon Muhammad committed the robbery. In both these stories, she maintained that
neither she nor Blyman was involved. Later, Bradshaw told police that she posed as a
prostitute while Muhammad and Blyman committed the robbery. Finally, Bradshaw
admitted that she posed as a prostitute to lure a victim and that Blyman committed the
robbery; no one else was involved.
       Bradshaw testified to this final version of events at trial, which she claimed was
the truth. Defense counsel then thoroughly cross-examined Bradshaw on her inconsistent
pretrial statements. Bradshaw, under questioning, repeatedly admitted lying to police in
her initial statements. Defense counsel also cross-examined the police officer who took
Bradshaw’s multiple inconsistent statements. When defense counsel requested to play
for the jury the videotapes of Bradshaw’s multiple statements to police, the trial court
denied the request.
       Blyman contends the ruling denying his request to play the videotapes was
prejudicial error. We disagree. “On appeal, an Evidence Code section 352 ruling is
subject to the deferential abuse of discretion standard of review. [Citation.] Only if the
record shows an exercise of discretion in an arbitrary, capricious, or patently absurd
manner that caused a manifest miscarriage of justice will an Evidence Code section 352
ruling be overturned. [Citation.]” (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1081
(Ybarra).)




                                             4.
       Here, the trial court conducted an Evidence Code section 3521 analysis before
ruling. The trial court noted that defense counsel had been given “free reign” in
examining Bradshaw about the details of each of her statements to police; the police
officer who took the statements had been cross-examined regarding the statements;
Bradshaw had admitted lying to police officers three times; and Bradshaw acknowledged
that the story she told the fourth time she was interviewed resulted in her plea agreement.
The trial court opined that the probative value of having the jury view two to four hours
of videotaped statements by Bradshaw was minimal in light of the lengthy testimony on
the subject and that showing the videotapes would be an undue consumption of time.
The trial court allowed the defense to recall any witnesses if it felt the need for further
cross-examination on the subject.
       The trial court’s decision was reasonable and fell well within the trial court’s wide
discretion under section 352. There was nothing arbitrary or capricious about the ruling.
(Ybarra, supra, 166 Cal.App.4th at p. 1081.)
       The trial court considered and rejected Blyman’s argument that he be allowed to
show excerpts of the videotapes and that these excerpts would not consume an undue
amount of time. As the trial court noted, if Blyman was allowed to show selected
excerpts, the prosecution had stated its intention to show the rest of the interviews, as
allowed by section 356. Thus, the undue consumption of time would have resulted from
showing any portion of the videotapes.
       Blyman’s claim that the ruling violated his right to present a defense and the
confrontation clause also fails. There was no violation of the confrontation clause.
Bradshaw and the police officer both testified and were cross-examined at length. The
jury had an opportunity to hear their testimony, observe their demeanor, and weigh their
credibility. (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) “‘Within the

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




                                               5.
confines of the confrontation clause, the trial court retains wide latitude in restricting
cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal
relevance.’” (People v. Ayala (2000) 23 Cal.4th 225, 301.)
       As a general rule, “‘“the ordinary rules of evidence do not impermissibly infringe
on the accused’s [constitutional] right to present a defense.”’” (People v. Lawley (2002)
27 Cal.4th 102, 155.) That is so here. The basic rules of evidence do not violate a
defendant’s constitutional right to present a defense. (People v. Phillips (2000) 22
Cal.4th 226, 238.) The trial court did not abuse its discretion in finding that the
consumption of time was not justified by the marginal probative value of the proffered
evidence. The marginal probative value of the videotapes does not place their exclusion
outside the general rule. (People v. Hawthorne (1992) 4 Cal.4th 43, 56-58.)
II.    Unanimity Instruction
       Blyman contends the evidence established two discrete acts that could have
formed the basis of the Penal Code section 422 criminal threats conviction and therefore
the trial court had a sua sponte duty to instruct the jury with a unanimity instruction. He
claims failure to so instruct the jury was prejudicial error, requiring reversal of the
conviction. The People maintain an election was made by the prosecutor in closing
argument; therefore, no unanimity instruction was required. The People are correct.
       Where multiple acts could constitute a terrorist threat, it is error for the trial court
to fail to give the unanimity instruction. (People v. Melhado (1998) 60 Cal.App.4th
1529, 1534.) The alternative to giving the jury a unanimity instruction, however, is for
the prosecution to elect a single act for each charge. (People v. Diaz (1987) 195
Cal.App.3d 1375, 1381 (Diaz).) Furthermore, no unanimity instruction is required where
a defendant’s acts constitute a single continuous course of conduct—“whose acts were so
closely connected in time as to form part of one transaction. [Citations.]” (People v.
Maury (2003) 30 Cal.4th 342, 423.)



                                               6.
       In People v. Russo (2001) 25 Cal.4th 1124, the California Supreme Court
explained that “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.]” (Id. at p. 1132.)
       In People v. Beardslee (1991) 53 Cal.3d 68, the court stated that “‘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.’ [Citations.]” (Id. at p. 93.)
       Assuming for purposes of argument the two comments made by Blyman were
discrete offenses, the People made an election during closing argument as to which
remark was the basis of the charge. The prosecutor stated the criminal threats charge was
for Blyman “threatening Mr. Urbano when he’s taking his money saying he’s going to
blow his head off.” This second threat occurred in the alley when Blyman took Urbano’s
money; the other threat occurred earlier, immediately after Urbano stepped away from
the ATM machine and while Urbano and Blyman were in the parking lot.
       The prosecutor also stated, “Urbano even told it to you in English. You heard him
say it on the stand. No doubt about the words that were used there.” Urbano testified
through a translator. Only the second threat made in the alley was repeated by Urbano in
English. Finally, the prosecutor stated in closing that Blyman told Urbano “he’s going to
blow his head off and he’s actually got the gun pointed at his head.” Only during the
second threat in the alley was the gun pointed at Urbano’s head.
       Because of the prosecutor’s election of the act upon which a conviction must be
based, we conclude that a more specific unanimity instruction was not necessary.
(People v. Jantz (2006) 137 Cal.App.4th 1283, 1292 (Jantz).) Based upon this election,
we conclude the trial court did not have a sua sponte duty to give a unanimity instruction.



                                             7.
(People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455; Diaz, supra, 195 Cal.App.3d at
p. 1383 (Diaz).)
       Moreover, while we believe such an election was understood in this case, we also
note that the evidence established all of Blyman’s acts were part of a continuous course
of conduct occurring within a short period of time. The jury found Blyman guilty of all
charged offenses and enhancements pertaining to this course of conduct. We conclude
that if there was any lack of clarity that triggered a duty to instruct, the failure to give the
unanimity instruction was harmless beyond a reasonable doubt. (People v. Riel (2000) 22
Cal.4th 1153, 1199; Jantz, supra, 137 Cal.App.4th at p. 1293.)
       The threats were similar and relatively contemporaneous in time. The jury
credited Urbano’s testimony about the series of events as reflected in its verdicts. There
is no rational basis for concluding the jury would credit Urbano’s testimony regarding the
threat in the alley, but not credit Urbano’s testimony regarding the threat in the parking
lot. This, plus the prosecutor’s argument, if not a clear election, certainly came close, and
in combination reflects that any failure to give a unanimity instruction was harmless
beyond a reasonable doubt.
                                       DISPOSITION
       The judgment is affirmed.

                                                                   _____________________
                                                                             CORNELL, J.

WE CONCUR:


 _____________________
LEVY, Acting P.J.


 _____________________
FRANSON, J.


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