California Cases May 11, 2020: People v. Saechao

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. 05-170860-1)

Defendant Yao Chow Saechao challenges his convictions for resisting an executive officer and battery on a peace officer based on the trial court's failure to give a unanimity instruction as to both crimes. We affirm.

A. Factual Background

On June 5, 2016 at approximately 3:30 a.m., Laura O. went outside her home in San Pablo to smoke on her side patio. She heard "[c]rying and hollering" from a car in the middle of the street. Laura O. went up to the driver's side of the car and saw defendant in the driver's seat and a "girl" in the passenger seat, who was later identified as Cindy N. Laura O. knocked on the window and yelled to ask if everything was okay. Defendant and Cindy N. did not appear to notice her presence and did not respond to her question.

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Cindy N. was screaming at defendant that he had her keys. Laura O. saw that defendant had keys in his hand and his eyes were fixated on Cindy N. Laura O. again asked Cindy N. if everything was okay, and she said, "No." Cindy N. was still "crying" and "screaming." Laura O. asked Cindy N. twice if she should call the police and Cindy N. twice responded, "Yes." Cindy N. then asked defendant to give her the keys. He grabbed her by the collar of her shirt, and with the keys in his closed left fist, hit her in the stomach or chest area. Laura O. testified after that defendant was "still pretty much fixated on [Cindy N.] and just stout like a dog ready to attack."

Laura O. called 911 and walked away from the car toward her home as she was on the phone with dispatchers. While she waited for the police to arrive, she saw the car move into the driveway of the house across the street.

About one minute after Laura O. called 911, Officer Dante DiMercurio—dressed in a police uniform—arrived in a "fully marked" patrol car. DiMercurio saw Laura O. pointing across the street at defendant's vehicle. DiMercurio shined the spotlight on his patrol car into defendant's car to light up the interior. DiMercurio exited his patrol car "fairly quickly" and saw as he approached that defendant and Cindy N. were "talking back and forth." He approached the driver's side of the car with his flashlight in his left hand, knocked on the car door, and announced himself loudly multiple times. He shined his flashlight on defendant's hands, but did not shine it on defendant's face.

Defendant looked at DiMercurio, then reached toward the floorboard of the car. Fearing that defendant was reaching for a weapon, DiMercurio took "almost a half-step back" and placed his hand on his gun. He told defendant twice, loudly, to put his hands on the steering wheel. Defendant turned his

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entire torso toward the interior door and tried to open the car door. DiMercurio told defendant to stay in the car and put his hands on the steering wheel.

DiMercurio then saw defendant reach down in the crevice between the driver's seat and the car door, causing DiMercurio to believe defendant was reaching for a weapon. He took one or two large steps backward, drew his gun, and stood at the rear of the car, about five to seven feet away. He told defendant to stay in the car, but defendant got out.

Defendant was "irate" and yelled at DiMercurio, "What, mother fucker?" Defendant had keys in his left hand. DiMercurio took another step back and yelled, "Police Department. Get on the ground." Defendant—whose muscles were tensed and fists were clenched—yelled, "What, nigga?" and "ran right at" DiMercurio in a "full sprint," with keys still in his left hand.

DiMercurio took several steps back to try to gain some distance. Defendant dropped the keys and DiMercurio holstered his weapon. Immediately after he holstered the gun, defendant threw a punch at DiMercurio's face with his right fist but missed. Defendant then tackled DiMercurio as DiMercurio tried to grab onto him to avoid falling. The two fell to the ground and DiMercurio's forehead hit the asphalt first. He momentarily "saw stars," his vision blurred, and his hearing became muffled. DiMercurio sustained an abrasion to his forehead above his left eyebrow—one inch in length and one-half inch in height—that resulted in a scar that lasted about a year after the incident.

After defendant and DiMercurio fell to the ground, DiMercurio rolled on top of defendant so they were facing chest to chest. Defendant pressed his hands against DiMercurio's face and dug his fingers into his skin—causing an abrasion on his nose—then punched him in the ribs three or four times

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with a closed fist. Defendant rolled on his stomach to try to get up and as DiMercurio tried to hold him, he "threw a[n] elbow" at the officer's head. DiMercurio, who had told defendant to stop resisting three or four times while they were on the ground, hit defendant in the face. Around the same time, he used an emergency button to call for assistance.

The two men continued to struggle on the ground. When DiMercurio felt his grip begin to slip, he warned defendant, "Stop or I'm going to tase you." Defendant continued to resist, and DiMercurio deployed the Taser twice on his back. The Taser did not seem to have an effect on defendant.

While DiMercurio was on the ground with defendant, Officer Roberto Arguello—also dressed in a police uniform—arrived at the scene. Arguello saw DiMercurio and defendant struggling and ran to assist DiMercurio with placing defendant in handcuffs. Arguello told defendant several times to stop resisting. Defendant began to roll onto his back and tried to punch and kick the officers. Defendant bit Arguello on his left forearm, though the bite did not break the skin. Arguello pulled his arm away and told defendant not to bite him. When defendant tried to bite Arguello a second time, Arguello punched defendant in the face area or mouth. The two officers continued to struggle with defendant.

Officer Robert Chalk, a canine patrol officer, arrived after Arguello with his dog. At that time, defendant had rolled onto his stomach; DiMercurio saw him tuck both hands and arms underneath his body and toward his waistband. DiMercurio thought defendant might be reaching for a weapon. DiMercurio, Arguello, and Chalk warned defendant to stop

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resisting and put his hands behind his back. When defendant did not comply, Chalk deployed his canine, at which point, defendant complied almost immediately. The officers placed defendant in handcuffs.

B. Procedural Background

On May 17, 2017, the Contra Costa County District Attorney's Office filed an information charging defendant with two counts of resisting an executive officer (Pen. Code, § 69; counts 1, 2); battery on a peace officer resulting in injury (§ 243, subd. (c)(2); count 3); battery on a person with whom he had a dating relationship (§ 243, subd. (e)(1); count 4); and resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)(1); count 5).

After a jury trial, defendant was acquitted on count 1, resisting an executive officer by force (Officer DiMercurio), but found guilty of the lesser-included misdemeanor of resisting arrest. The jury also found defendant guilty of count 2, resisting an executive officer by force (Officer Arguello). Defendant was acquitted on count 3, battery with injury on a police officer (Officer DiMercurio) but was found guilty of the lesser-included misdemeanor of battery on a police officer (§ 243, subd. (b)). Defendant was also acquitted on count 4.

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The trial court sentenced defendant to one year in custody and one year under mandatory supervision. Defendant timely appealed.

Defendant challenges his convictions on counts 2 and 3, contending the trial court erred in failing to instruct the jury it must unanimously agree on which act or acts serve as the basis for their verdicts. A claim of instructional error presents a question of law we review de novo. ( People v . Hernandez (2013) 217 Cal.App.4th 559, 568 ( Hernandez ).)

A criminal defendant has a constitutional right to a unanimous jury verdict. ( People v . Russo (2001) 25 Cal.4th 1124, 1132.) "[O]ur Constitution requires that each individual juror be convinced, beyond a reasonable doubt, that the defendant committed the specific offense he is charged with." ( Hernandez , supra , 217 Cal.App.4th at p. 569.) When a defendant is charged with a single criminal offense, but the evidence suggests more than one discrete crime, all the jurors must agree that the defendant committed the same act. If the prosecution does not elect to rely upon a single criminal act, then the trial court has a sua sponte duty to instruct the jury it must unanimously agree that the defendant committed the same specific act. ( Russo , at p. 1132.) The requirement " '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.' " ( Ibid .)

A unanimity instruction is not required, however, "if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' [citation], or 'when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time' [citation]. There also is no need for a unanimity instruction if the defendant offers the same defense or

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defenses to the various acts constituting the charged crime." ( People v . Jennings (2010) 50 Cal.4th 616, 679.)

A. Count 2 — Resisting an Executive Officer

In count 2, defendant was charged with resisting an executive officer, Officer Arguello. Defendant contends the trial court was required to give a unanimity instruction because the prosecution identified three different acts—(1) attempting to punch Arguello, (2) biting Arguello, and (3) attempting to bite Arguello a second time—and argued that each act, alone, was a sufficient basis for the charge. Defendant claims the jury had reasons to accept and reject the officers' testimony as to each act, and therefore it is possible the jury disagreed as to which act constituted resisting Officer Arguello.

We disagree. Defendant's acts were so closely related in time and place that they were part of a continuous course of conduct—not discrete acts supporting separate charges. When he arrived at the scene, Officer Arguello saw defendant and DiMercurio struggling on the ground and rushed to assist. As Arguello attempted to help DiMercurio put defendant in handcuffs, defendant continued to resist both officers. He punched, bit, and tried to bite Arguello again, all within "[m]aybe a minute." Defendant did not stop struggling with either officer until Officer Chalk released the dog. Arguello testified these three acts occurred one after the other, supporting a determination they were part of a single transaction not distinct acts separated in time. (See Hernandez , supra , 217 Cal.App.4th at p. 573 ["continuous course of conduct exists when the same actor performs the same type of conduct at the same place within a short period of time"]; People v . Lopez (2005) 129 Cal.App.4th 1508, 1533 [the defendant's struggle with several officers in resisting arrest constituted a continuous course of conduct

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not requiring unanimity instruction]; People v . Jefferson (1954) 123 Cal.App.2d 219, 221 [no unanimity instruction required where the defendant, using two different knives in two different locations within a period of 10 to 15 minutes, slashed at police officers because acts occurred during "continuous effort on the part of the officers to disarm" defendant].)

Defendant relies on People v . Jones (1990) 51 Cal.3d 294 to argue the court should have required a unanimity instruction here, but that case is inapposite. In Jones , a jury found the defendant guilty of six counts of lewd conduct after he repeatedly molested his adopted son over a period of approximately two years. Our Supreme Court held that a victim's "generic testimony describ[ing] a repeated series of specific , though indistinguishable, acts of molestation" could support more than one conviction without violating the unanimity requirement. ( Id . at p. 321.) Moreover, Jones is factually distinguishable because the conduct at issue took place on various occasions over months and years, unlike here, where all of defendant's acts occurred within the scope of one minute during an act of resisting arrest.

Further, as our Supreme Court has explained: "The unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." ( People v . Russo , supra , 25 Cal.4th at p. 1135, italics added.) Here, the three different acts of

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punching, biting, and trying to bite Arguello were merely different ways of committing the single crime of resisting arrest, and accordingly no unanimity instruction was required. (See, e.g., People v . Varela (2011) 193 Cal.App.4th 1216, 1220 [unanimity instruction was not required in prosecution for reckless evasion of peace officer because the jury was not required to agree on the predicate traffic violations]; People v . Ortiz (2012) 208 Cal.App.4th 1354, 1376 [jurors were not required to agree on whether defendant Quezada actually possessed a gun, actually possessed a Taser, constructively possessed codefendant Martinez's gun, or constructively possessed codefendant Ortiz's Taser as they were all multiple "theories" of a single discrete crime or allegation].)

Defendant contends the continuous-course-of-conduct exception does not apply because jurors might have believed defendant committed some of the acts but not others based on whether they believed all or some of his, Cindy N.'s, Officer Arguello's, or Officer DiMercurio's testimony. Defendant asserts the jury could have believed either that (1) as defendant testified, he did not commit the acts, or (2) he was acting in self-defense because the officers were using excessive force. Because defendant had various "potential defenses," he argues, "one cannot deny the ' possibility of jury disagreement regarding the defendant's commission of any of these acts.' " However, while defendant suggests different ways the jury might have viewed the evidence, he did not actually offer different defenses to the three acts at trial. As to all three acts, he testified he did not attempt to strike, bite, or try to bite Arguello and he could not remember what happened after he fell to the ground with Officer DiMercurio and hit his head because he was unconscious. In her closing, his counsel argued Arguello's testimony acknowledged defendant was unconscious, corroborating defendant's "representations that

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he had no ability really to defend himself against a physical beating, against an electrocution with a TASER, against a mauling by the dog . . . ." Defense counsel argued defendant lacked the ability to defend himself against the officers using excessive force as a defense to all of the charges. Because defendant did not actually assert different defenses to the three acts, defendant has not shown the trial court erred in failing to give a unanimity instruction. (See People v . Jennings , supra , 50 Cal.4th at p. 679; People v . Percelle (2005) 126 Cal.App.4th 164, 181 [no unanimity instruction is required when defendant tenders same defense or defenses to each act and there is no reasonable basis for jury to distinguish between them]; see People v . Wolfe (2003) 114 Cal.App.4th 177, 188 [failure to give unanimity instruction was harmless error where jury clearly rejected unitary defense to all criminal acts].)

B. Count 3 — Battery on a Police Officer

In count 3, defendant was charged with battery causing harm on a police officer, Officer DiMercurio. In explaining count 3 to the jury during closing argument, the prosecutor said: "Now I'm gonna move to Count 3. And in Count 3 I'm gonna focus on the injury that Officer Dimercurio received. And if you recall, when I was talking about the defendant tackling Officer Dimercurio, that's the basis for Count 3. When he tackled the officer, unlike the punches or any swings that he made which may have missed, that tackle he made contact, and once the officer landed on his forehead, that caused an injury." The prosecutor emphasized the injury had caused DiMercurio to see stars, blurred his vision, and caused auditory impairment,

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and, as a result, DiMercurio suffered "an injury as defined by Count 3." Though the jury acquitted defendant of battery causing injury, it convicted him of the lesser-included battery on a peace officer offense.

Defendant argues once the jury acquitted him of the battery with injury offense, however, there was no logical or legal reason for them to limit their consideration of the acts supporting count 3 to the tackling offense, and some jurors might have actually relied on the fighting on the ground as the basis of their verdict. Because different members of the jury may have relied on different acts to convict him of the lesser-included offense of battery on DiMercurio, defendant contends, the trial court's failure to give a unanimity instruction is reversible error.

When the prosecution makes an election as to the act that serves as the basis for the charged offense, the trial court is not required to give a unanimity instruction. ( People v . Jennings , supra , 50 Cal.4th at p. 679.) "The prosecution can make an election by 'tying each specific count to specific criminal acts elicited from the victims' testimony'—typically in opening statement and/or closing argument." ( People v . Brown (2017) 11 Cal.App.5th 332, 341.) "Such an election removes the need for a unanimity instruction." ( Ibid .) Here, the prosecutor told the jury that defendant's tackle of DiMercurio formed the basis of count 3, and specifically distinguished that act from the other acts that did not make contact, including "punches or any swings that he made which may have missed." Defendant offers no legal authority supporting his contention that a unanimity instruction is required even where the prosecution elects to rely upon a specific act supporting a

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charge simply because the jury ultimately convicted defendant of the lesser-included offense. Given the prosecutor's explicit statement to the jury that he was relying on the tackle as the basis for count 3, the trial court was not required to instruct on unanimity.

On reply, defendant argues for the first time that the prosecutor's comments during closing argument were insufficiently formal to constitute an election obviating the need for a unanimity instruction. We need not consider this argument because it was raised for the first time on reply. ( Reichardt v . Hoffman (1997) 52 Cal.App.4th 754, 764-765.) Moreover, defendant does not cite any applicable legal authority supporting his argument. To the contrary, our courts have concluded that such elections "typically" occur during opening or closing statements. (See People v . Brown , supra , 11 Cal.App.5th at p. 341; see People v . Hawkins (2002) 98 Cal.App.4th 1428, 1455 [because prosecutor elected conduct amounting to crime in argument, no unanimity instruction was required].)

People v . Melhado (1998) 60 Cal.App.4th 1529, on which defendant relies, is inapposite. There, the prosecution did make an election as to the act that constituted the crime, but unlike here, the election was communicated only to the court and opposing counsel, never to the jury. ( Id . at p. 1534.) Here, the prosecutor emphasized multiple times in closing argument, during his discussion of both counts 1 and 3, that count 3 was based on defendant's tackling of DiMercurio. Under these circumstances, we find no error in the court's failure to give a unanimity instruction.

The judgment is affirmed.

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/s/ _________
Margulies, Acting P. J.

We concur:

/s/ _________
Banke, J.

/s/ _________
Sanchez, J.