P. v. Clarke

Filed 3/12/08 P. v. Clarke CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County,

Judith L. Champagne, Judge. Reversed.

Teresa R. Barrera, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson, and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

___________________

Karyl Onell Clarke (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of making a criminal threat (Pen. Code, 422; count 3),[1]with a court finding that defendant had a juvenile adjudication of a prior serious felony of robbery that qualified him for sentencing pursuant to the three strikes law ( 667, subds. (b)-(i); 1170.12). The trial court sentenced him to a six-year term in state prison.

He contends that (1) his conviction must be reversed because [the trial court] violate[d] his rights to a unanimous verdict, fair notice, and proof beyond a reasonable doubt; (2) the trial evidence is insufficient to support his conviction of making a criminal threat; (3) the imposition of an upper term at sentencing constitutes Cunningham error (Cunningham v. California (2007) 562 U.S. ___ [127 S.Ct. 856]); (4) the trial court improperly considered his prior commitment to the California Youth Authority in determining that he had served a prior prison term within the meaning of California Rules of Court, rule 4.421(B)(3); and (5) the trial court erred by finding that his prior juvenile adjudication of robbery constituted a strike within the meaning of the three strikes law.

We conclude that the trial court erred by failing to charge the jury with a unanimity instruction, and the error is prejudicial. Accordingly, we order the judgment reversed.

FACTS

I. The Verdict

In count 1, the amended information charged that on or about December 20, 2005, defendant kidnapped E. In count 2, it charged that on or between the dates of
December 20, 2005, and March 16, 2006, defendant committed the offense of stalking E. by repeatedly following, harassing, and making a credible threat to E. with the intent that she be placed in reasonable fear for her safety and for the safety of her immediate family. In counts 3 and 4, the amended information charged that on or about December 20, 2005, defendant made criminal threats respectively, to E. and her sister L. In counts 5 and 6, the amended information charged that on or between December 20, 2005, and March 16, 2006, defendant made criminal threats respectively, to E.s father and mother.

The jury returned a guilty verdict only as to the criminal threats in count 3, those made to E. on or about December 20, 2005. The jury deadlocked on the other counts. On count 1, the jury was divided one juror for guilty, and the remaining 11 jurors voted that defendant was not guilty. As for the stalking offense, count 2, the jury split 10 jurors for guilty, one juror for not guilty, and one juror was undecided. On counts 4 and 6, one juror voted guilty and the other 11 jurors voted not guilty, and on count 5, nine jurors voted guilty, 2 jurors voted not guilty, and one juror was undecided.

The trial court declared a mistrial with respect to counts 1, 2, 4, 5 and 6.

Immediately before sentencing, the prosecutor informed the trial court that the People were declining to retry defendant on counts 1, 2, 4, 5 and 6. The trial court dismissed these counts.

II. The Prosecutions Case-in-chief

E., age 21 at the time of trial, met defendant at an October 2005, birthday party she gave for her son at her residence, which was on Jefferson Boulevard in Los Angeles. Defendant, whom she knew as Nelson, was L.s friend. During the following December 2005, defendant asked E. for a favor and claimed that he had no identification. He wanted to use E.s name and her identification to receive a wire transfer through Western Union. If E. agreed, she would have to pick up the wire transfer for him. She agreed to pick up the wire transfer.

On Friday, December 16, 2005, defendant drove E. to the Nix Check Cashing store at 18th Street and Western Avenue in Los Angeles. In the car, in the parking lot, defendant filled out the appropriate paperwork and sent E. into the location alone to obtain the money. E. followed his directions, showed her identification to the store employee, and picked up $2,900 in cash. Defendant waited in his car in the parking lot. E. left the store and gave defendant the money. He thanked E., gave her $50, and drove her home.

The following day, on December 17, 2005, defendant wanted E. to pick up another wire transfer that he had sent in her name. She refused. He tried cajoling. She refused to assist him, and he threatened her. His comments to her implied that he had had more money wired in her name. She testified that she had refused to pick up any more money as she concluded that what he was doing was not right.

E. owned a Nextel cellular telephone that was also a walkie-talkie. After her refusal, defendant repeatedly chirped her on December 17 and December 18, 2005, attempting to persuade her to pick up the wire transfer. He made threats to her over her telephone until she turned it off. E. said that on December 17, 2005, defendant started getting violent. He told her, If [she did not] pick up the money[,] he would hurt [her]. On the afternoon of December 18, 2005, defendant repeatedly chirp[ed] her, threatening and telling her to pick up the wire transfer.

On December 19, 2005, defendant continued telephoning her and threatening her. She spent the night at her boyfriend Everetts residence so as to avoid defendant.

Early the following morning, on December 20, 2005, defendant accosted E. and Everett outside Everetts residence and kidnapped E. During the kidnapping, he wore a black ski mask. At gunpoint, he ordered her to [g]et in the f------ car and said, I better get in the car if I didnt want to see [Everett] hurt. Defendant drove E. to an alley near her residence at Jefferson Boulevard and Western Avenue. He parked his passenger door against a wall so that she could not escape out the passenger side of the car. Initially, he attempted to cajole her into picking up the wire transfer. She would not agree to do so, and he told her that she was going to pick up the f----- money and that he did not want to hurt her. He also said, B----, if you dont go get my money, Ill kill you.

Defendant kept E. imprisoned in his car for about three hours from approximately 7:30 a.m. to 10:30 a.m. She characterized his remarks to her during her imprisonment as threats. She said that he had repeatedly demanded that she pick up his wire transfer. When he made these threats, he had his hand in his pocket on his handgun. Then he started telling her that he would hurt her family if she did not pick up the wire transfer. She continued to refuse because she did not want to get into trouble and because she was afraid that no matter what she did, he would hurt her. Specifically, he told her, B----, if you dont go get my money, Ill kill you, that she was going to pick up the f------ money, and that he dont want to hurt her. He threatened to hurt her f------ dad.

A police car drove by, and defendant got out of his car, apparently to put his handgun into the trunk. When he attempted to return to his drivers seat, E. kicked him in the groin and escaped out the drivers door. She ran to a nearby Food4Less store and telephoned her father. Her father and other family members drove over and picked her up on the corner. E. told them about defendants threats to her and to the family, and everyone was frightened.[2] When E. was inside the Food4Less store, she did not telephone the police or seek help from anyone at the store. E. explained that she was afraid that to do so would put her family in jeopardy and that defendant knew where her family lived.

Later, on the afternoon of December 20, 2005, defendant contacted her by cellular telephone. He said that the next time he catch [her] that they wont see me. Her brother Michael overheard this threat.

The entire family, including all nine of the brothers and sisters who still lived with her parents, went to her grandmothers for two to three days. On December 23, 2005, at 1:00 a.m., the family checked into a motel, where they stayed until early Christmas morning.

On Christmas morning, the family returned to their residence. Defendant continued to chirp E. on her Nextel cellular telephone. During the telephone calls, he repeatedly told her that the next time he [caught her] that . . . nobody was going to see [her] no more. During other calls, he inquired where she was, indicating that he had checked her residence and that she was not at home. During his calls, he said such things as he was going to make [her] suffer and [h]e was going to tie [her] up. During this period, he also placed telephone calls to her father. She overheard some of the threats made to her family members regarding her safety.

When the family moved to the grandmothers residence, defendant also started making telephone calls to L.[3] He told L. that he wanted to know where E. was because he needed E. to go pick up money out to Nix. Eventually, when L. was uncooperative in revealing her sisters location, defendant told L. that if she did not tell him where E. was, he was going to hurt L. He said that [ne]xt time he catch [E.], [E.] will be missing. Missing in action. Later, he told L. that he would shoot L. and her family and would send the Jamaican mafia to shoot everyone at the house. He said that if L. did not tell him where E. was, if he saw L. on the street, he would shoot her and that L. should [W]atch [her] back.

L. believed that defendant would carry out his threats. She believed this because of his demeanor and because previously, she had seen him with two loaded handguns at his apartment.

O.L., a sister-in-law, testified that she was present during the period the family was staying at the grandmothers. She said that the threats had made the entire family paranoid. She said that the father was pacing before the door and continually looking outside. She said that everyone was afraid, and the father was telling his many children and family members to stay away from the door.

On Christmas morning, despite their fear, the family returned home. E. moved with her son from her residence and started living with the family. Everyone was afraid to leave the house. Defendant continued making the same threats to E. by telephone, telling her that if he found her walking down the street, she would not escape again. He also threatened to hurt [her] son.

The day after Christmas, defendant drove to the family residence. Defendant told E.s mother that he wanted E. to pick up the money . . . because his rent was due. She said that defendant claimed E. owed him $2,900 because she refused to pick up the second wire transfer for him. The mother told defendant that E. did not want to do that and that E.s refusal to help him was defendants problem. In response, defendant said to the mother, Next time I get her, she [is] going to be missing. You are not going to see her no more. He told the mother that if he could not get E., he would get the mothers other children. The mother told him that she did not believe that. Defendant retorted, Well see. Later, E.s mother had 10 to 15 conversations with defendant in which he made similar threats. Defendant told the mother that he was holding her responsible because she knew where E. was and she had refused to help defendant. He also told her that if [I cannot] get the cow, Ill get the calf, referring to E.s son.

E.s father testified that he spoke to defendant by telephone after E. was kidnapped. Defendant told the father, If I dont have a good Christmas, Mr. Mike, you are not going to have one[,] and If he could not get the cow, that he was going to get the calf[,] which the father interpreted as a threat against his grandson. In a later conversation, defendant told the father that he could get any one of [his] kids. During a visit to the residence, defendant told the father that E. had a confirmation number he wanted, that she had picked up $2,900 for him, and that he wanted that confirmation number because there was $20,000 up there that anybody can get with the number. At some point, defendant said that he was holding the father responsible. Defendant claimed that his rent was due and that he needed money for his own children.

On January 3, 2006, E.s father gave defendant $800 because he believed that if he gave defendant some money, that would be the end of defendants visits and threats. However, defendant kept returning. Defendant told the father that he was from the Jamaican mafia. He said that he was loyal to the mob and that a big man from Miami was going to come down here and kill the family. The father testified that every time he spoke to defendant, defendant threatened him. Defendant told the father that if he caught E. again, [we werent] going to see her no more. The father believed the threats and that defendant was capable of killing someone.

To explain the failure to report these threats to the police, the father said that defendant had frightened them all. Finally, all the threats to his grandson made the father decide that E. should report defendants misconduct to the police.[4]

The father had testified at the preliminary hearing that the first time defendant came by his residence was the day of Tookie Williamss memorial service, December 19, 2005. At trial, the father insisted that he met defendant for the first time at about noon on December 19, 2005, when defendant came by looking for E. and then for L. He determined the date was December 19, 2005, by looking up the date of Williamss memorial service on the Internet. He explained that there were several memorial services for Williams, and one was held on December 19, 2005. However, there was also another memorial service on December 20, 2005.

The father testified that at about 8:00 a.m. on December 19, 2005, E. had telephoned him from Food4Less and wanted him to pick her up. She claimed that she had been kidnapped. At 9:30 a.m. that morning, defendant had dropped L. off at the family residence. Later, L. told her father that defendant was the person who had dropped her off; the father had not seen defendant at that time. The father claimed at trial that the family had spent two days at his mothers residence, two days at the hotel, and returned home on Christmas morning. He made contradictory claims about when he spoke to defendant initially by telephone. When trial counsel attempted to pin the father down as to several dates of contact, the father testified that he did not know exactly when this all happened because it had occurred seven months previously.

The father did not recall testifying at the preliminary hearing that on December 19, 2005, defendant came by his residence and told him that E. owed him money. He acknowledged that at his initial interview with the detective, he had denied giving defendant money. However, he also explained that before the preliminary hearing, he had informed the detectives that he had lied about the money. All he recalled during the trial was that defendant had told him that he had E. pick up $2,900 for him and that E. now had defendants confirmation number.

At trial, the father was emphatic that defendant had never threatened to call the police because E. had stolen money from him. He explained that defendant never said any such thing because [defendant] know [sic] what he was doing was crooked.

E. testified that the last threat E. received was in February 2006. During that telephone call, defendant told her brother Michael that it would be a shame if [she] just up and disappeared. On March 1, 2006, she reported the kidnapping and threats to the police. Defendant made one more visit to her familys residence after she reported the threats. E. believed that defendant would carry out his threats. Even after his arrest and at trial, she was afraid of him.

On March 16, 2006, police officers attempted to serve a search warrant and to arrest defendant at his Los Angeles apartment. Defendant escaped out an open window and ran, but he was pursued and arrested. A search of defendants

apartment uncovered a black ski mask. Ten feet outside defendants open window, along the path of his flight, the police found a loaded handgun sitting in the bushes.

The detective testified and acknowledged that at one time, E. had claimed that the kidnapping occurred on December 20, 2005. He explained that E. and L. had given him conflicting information about the dates upon which the kidnapping, stalking, and threats had occurred. Nevertheless, he concluded that the chain of events that the women had related to him at various times constituted a consistent history of events. The father had told him that defendant was demanding $2,900, and E. said that defendant was demanding such a sum from her. The women had difficulty describing the location of appellants apartment; but he had discovered its location by using information L. gave him and he had the women drive with him to the apartment.

When E. reported the crimes on March 1, 2006, a police officer took a report from her. The officer wrote down that E. said that during the kidnapping, defendant had told her, B----, you better m-----f------ give me my money. She said that defendant said the following: B----, if you dont have my money, Ill kill you; I am from the m-----f------ mafia; You are going to smoke me bitch. I am not going to let that happen to me,

b----; and You better let me have my money or you are dead. E. told him that defendant had shouted at her that he wanted her house key, or he would kill her sister, referring to another sister apart from L., a sister that occasionally lived with her.

III. The Defense

Defendant testified and denied the kidnapping and the threats. He also denied that the handgun recovered outside his apartment upon arrest was his. He testified that both L. and E. had agreed to pick up Western Union wire transfers for him at local check cashing stores. He denied L.s claim that prior to December 2005, he had enlisted L. to cash fraudulent checks for him at banks. Defendant claimed that on December 19, 2005, he had picked up L. and E. at their respective residences, the family home and E.s residence. They went to at least three or four Nix Check Cashing locations and to Ralphs grocery stores looking for locations with enough cash so that the women could pick up two $2,900 wire transfers.

That evening, L. obtained $900 in cash and money orders totally $2,900 at one Ralphs grocery store. Defendant dropped the women off at their respective residences. Defendant had been unable to find a location that had enough cash for the transfer he had arranged in E.s name. The following morning, defendant picked up L. at 7:30 a.m. She cashed the money orders she had received from Ralphs the previous evening at the same Ralphs grocery store. Defendant took her home. He drove to E.s residence.

At about 10:00 a.m. on December 20, 2005, defendant drove E. to a Nix Check Cashing store. In the Nixs parking lot, defendant filled out the paperwork necessary to pick up the Western Union transfer, writing down the confirmation number for the transfer on his paperwork. E. entered the store with the paperwork, and he waited for her in the parking lot. E. did not return. He investigated and discovered that E. had walked out of the store without picking up the transfer and had disappeared. While she did not pick up his money, she still had his confirmation number. With that number and her identification, she could pick up the $2,900 wire transfer at any time.

Defendant claimed that he had no way of notifying his father, who he claimed had sent him the money, or Nix, to prevent E. from picking up his money. He thereafter repeatedly telephoned E. and visited her residence. He claimed that she had turned off her cellular telephone and that she did not return to her residence. He could not reach her. He testified that he believed the wire transfer was picked up that day about one and 2:00 oclock, somewhere around [there].[5]

After E. failed to return to his car, at about 11:30 a.m. or 12:00 p.m., defendant drove to her familys residence and had a friendly two-hour talk with her parents. Defendant told E.s father that E. had stolen $2,900 from him. He returned to speak to the father on December 21, 2005. Later, defendant told the father that he would have E. arrested for taking his money. Defendant claimed that E.s father had agreed to repay him the amount that E. had taken from him, which he said was about $2,000 after the father had repaid him $600 and $200 respectively, at the beginning of January and at the beginning of February, 2006.

Defendant claimed that his own father was the person who had wired him the money so that he could pay his rent and his expenses. Defendant explained that he could not pick up the money personally because he lacked the appropriate identification.

During cross-examination, defendant admitted that he had a valid drivers license during this period of time. He testified that when he spoke to the detective after his arrest, he claimed that he did not know where his own father was at. Defendant made conflicting claims about L. and E. having stolen money from him at his apartment on Christmas Day. He agreed that during his postarrest statement to the detective, he had complained that E. had stolen the money that was wired to him. He also did not tell the detective that thereafter, he had gone to the family residence and he had spoken to E.s father on December 20, 2005, December 21, 2005, and December 22, 2005. Defendant testified that he may have also spoken to E.s father on December 23, 2005, by telephone, but he could not be certain; he did drive to the family residence on that date.

Defendant admitted that he had chirped E. on December 20, 2005. He said that he spoken to her father, the mother, and L. on the telephone or in person repeatedly between December 20, 2005, and the day of his arrest. Defendant agreed that his version of the events was that E.s and L.s family made up their stories so that E. did not have to repay him the remaining $2,000 she owed him after she took his money. He denied that he had stalked and threatened E. because she would not assist him by obtaining his wire transfer.

Defendant explained his possession of the ski mask. He claimed that that bag the ski mask was contained in was given to him by Everett in late December 2005. He said that Everett gave him the bag because Everett claimed that its contents truly belonged to him. The bag contained childrens clothing that Everett told him had been purchased by E. at Wal-Mart after she had picked up his money.[6]

E. was called as a defense witness. Trial counsel showed her exhibit H., which purported to be evidence of a wire transfer that E. had picked up on December 20, 2005. It was a three-page document. E. denied that the three signatures on exhibit H. were hers. However, she did acknowledge that one signature appeared to be hers, and she recalled signing a document when she had picked up defendants money; she did not recall signing exhibit H. The drivers license number on the documents, however, was hers. E. explained that she went with defendant to only one Nix Check Cashing location. At that time, she had picked up a wire transfer of $2,900. E. admitted that she might be mistaken about the date on which she picked up the money. She did not recall being given or having to cash checks. She recalled signing only one document and that she was then given the $2,900 in currency. She did not recall writing down her drivers license number in order to get the money; however, she had shown the employee her identification before she was given the cash. She denied absconding with defendants money.[7]

DISCUSSION

I. A Sua Sponte Jury Instruction on Unanimity

Defendant contends that the failure sua sponte to give the jury a unanimity instruction violated his constitutional rights to a unanimous jury verdict, to fair notice, and to proof beyond a reasonable doubt.[8]

We disagree.

A. Background

When E. testified that the threats from defendant had been ongoing, the prosecutor attempted to amend counts 2 and 3 of the information. The prosecutor wanted counts 2 and 3 to allege criminal threats during the period between December 20, 2005, and
March 2006. The trial court denied the request. It told the prosecutor that the request was untimely: they were in the middle of trial.

The prosecutor did not make an election as to the particular threat it was prosecuting.

After the evidence was complete, the trial court charged the jury as follows with CALCRIM 207: It is alleged that the crime occurred on or about December 20, 2005. The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day.

Trial counsel objected that the instruction was improper because on the date in question, defendant asserted that he was elsewhere.

During final argument, the prosecutor argued that the specific dates on which the events occurred was not as important as determining whether the events occurred as claimed by the prosecution witnesses.

B. The Relevant Legal Principles

Article I, section 16 of the California Constitution provides in relevant part that Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. By implication, of course, in criminal actions section 16 requires jury unanimity. (People v. Feagley (1975) 14 Cal.3d 338, 350, fn. 10; People v. Smith (2005) 132 Cal.App.4th 1537, 1545, fn. 8; see People v. Engelman (2002) 28 Cal.4th 436, 442, 444; People v. Nesler (1997) 16 Cal.4th 561, 578.)

The court in People v. Russo (2001) 25 Cal.4th 1124, said the following: 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. (People v. Diedrich (1982) 31 Cal.3d 263, 281.) 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 will be convicted even though there is no single offense which all the jurors agree the defendant committed. [Citation.] For example, in People v. Diedrich, supra, 31 Cal. 3d 263, the defendant was convicted of a single count of bribery, but the evidence showed two discrete bribes. We found the absence of a unanimity instruction reversible error because without it, some of the jurors may have believed the defendant guilty of one of the acts of bribery while other jurors believed him guilty of the other, resulting in no unanimous verdict that he was guilty of any specific bribe. (Id. at pp. 280-283.) The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count. (People v. Deletto (1983) 147 Cal.App.3d 458, 472.) (People v. Russo, supra, 25 Cal.4th at p. 1132; accord, People v. Melhado (1998) 60 Cal.App.4th 1529, 1536 [addressing criminal threats]; see also People v. Davis (2005) 36 Cal.4th 510, 561; People v. Maury (2003) 30 Cal.4th 342, 423; People v. Jenkins (2000) 22 Cal.4th 900, 1025; People v. Beardslee (1991) 53 Cal.3d 68, 92.)[9]

Affecting as it does the defendants constitutional right to fair notice of the charges, a trial courts failure to order an election or in the alternative, to give a unanimity instruction requires a reversal, unless the error can be deemed harmless beyond a reasonable doubt. (People v. Salvato (1991) 234 Cal.App.3d 872, 883.)

A failure to give a unanimity instruction can be found to be harmless where the record provides no rational basis for the jury to distinguish between the various acts, and the jury would have believed beyond a reasonable doubt that the defendant committed all acts if he or she committed any. (People v. Deletto, supra, 147 Cal.App.3d at p. 471; see e.g., People v. Riel (2000) 22 Cal.4th 1153, 1200.) Also, [w]here the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him [or her] 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.)

C. The Analysis

Applying the above principles to the instant case, we conclude that the trial testimony indicates that defendant had committed multiple independent acts, any one of which may have constituted the making of a criminal threat on or about December 20, 2005. The People made no election, and the trial court failed to inform the jury of the requirement that it unanimously agree on the acts constituting the crimes alleged.

In this instance, all the witnesses, including defendant, lied or hedged on any number of claims he or she made during the trial testimony. The evidence concerning when the threats occurred, exactly what happened during a particular time frame, and what motivated the threats, kidnapping, and stalking was disparate, often vague, and contradictory. The verdict and deadlocks on the other counts indicate that the jury failed to believe most of the accusations lodged against defendant beyond a reasonable doubt, whether they were based on the evidence produced by the prosecution or by the defense. Nevertheless, the jury concluded that defendant had committed at least one criminal threat with respect to E. In this instance, there is a reasonable possibility that in the absence of a unanimity instruction, the jury may have amalgamated the evidence of the multiple threats so as to reach a conclusion beyond a reasonable doubt of defendants guilt of one threat. (People v. Wolfe (2003) 114 Cal.App.4th 177, 184-185; People v. Salvato, supra, 234 Cal.App.3d at p. 884; see People v. Napoles (2002) 104 Cal.App.4th 108, 115-116.)

The error is prejudicial because we cannot conclude that the jury resolved the issues at trial based upon a blanket rejection of defendants claims in defense or on the basis of his credibility.

We order the judgment reversed as the failure to deliver CALJIC No 17.01 or a similar jury instruction was prejudicial.[10]

II. The Other Contentions

As we are reversing the judgment on the above grounds, we decline to address defendants other contentions. If defendant is once again convicted, he may address his sentencing contentions to the trial court.

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

ASHMANN-GERST

We concur:

____________________, Acting P. J. ____________________, J.

DOI TODD CHAVEZ

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] At the trial, L.s and E.s mother and father testified about picking E. up at the Food4Less store. They said that E. had told them about the threats to her and to the family, and the parents testified that the family had left home for several days until Christmas morning. Neither her mother nor father could say precisely when the kidnapping occurred. The mother corroborated that she had overheard one telephone call defendant made to L. when the family was at the grandmothers. The mother said that defendant told L. in an angry tone, Where the h--- [was E.]

[3] L. had previously cashed checks at banks for defendant until she was arrested on November 30, 2005, and was prosecuted for a misdemeanor. Without knowing that E. was also obtaining wire transfers for defendant, on December 15 and 16, 2005, L. picked up several large Western Union wire transfers for defendant at Nix Check Cashing locations or at a Ralphs Grocery store. E. and L. testified under grants of immunity with respect to the Western Union wire transfers they had picked up for defendant.

[4] The receipt for the motel indicated that the family was at the motel from the early morning hours of December 24, 2005, to Christmas morning.

[5] He explained that at a Nix Check Cashing location, a person picking up a wire transfer is given a check or money order, which Nix then cashes for the wire recipient.

[6] In rebuttal, the detective testified that on March 16, 2006, he questioned defendant about E.s claims. When the officer was eliciting preliminary information about defendants own family, defendant claimed that he did not know anything about his own fathers whereabouts. Defendant told the detective that L. and E. had stolen money from him at his apartment on Christmas Day and that he claimed to have been at the residence of E.s parents the day preceding his arrest. He also admitted that he had spoken to the parents by telephone.

[7] Exhibit H. is a copy of a four-page record from Western Union Financial Services. It contained of three Xeroxed copies of the front and back of Western Union checks, dated December 20, 2005. E. was named as the payee on each check. The amounts of the three checks equal $2,900. On the back of the checks appeared a signature purporting to be E.s. The fourth page of the record indicates that the $2,900 in currency was wired from Orlando, Florida, by a person named Benjamin Gillian who gave his address on Pine Lake Road in Orlando, Florida. The wire transfer apparently was made in Florida or received from Florida in Los Angeles at 1:58 p.m. Eastern Standard Time and paid by Nix Check Cashing store No. 48 at 2:25 p.m. The paperwork was not explicit in indicating whether the 2:25 p.m. pickup time was also Eastern Standard Time and whether all the times therein noted are Eastern Standard Time.

[8] CALJIC No. 17.01 is the standard unanimity instruction. As applicable here, it provides: The defendant is accused of having committed the crime of _____ [in Count ____.] The prosecution has introduced evidence for the purpose of showing that there is more than one [act] . . . upon which a conviction [on Count ____] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] . . . committed any one or more of the [acts] . . . . However, in order to return a verdict of guilty [to Count ____], all jurors must agree that [he] . . . committed the same [act] [or] . . .  [acts] . . . . It is not necessary that the particular [act] . . . agreed upon be stated in your verdict.

[9] In order to find appellant guilty of making a terrorist threat in violation of section 422, evidence to prove the following elements was required: 1) appellant willfully threatened to commit a crime which if committed would result in death or great bodily injury; 2) he made the threat with the specific intent that the statement be taken as a threat; 3) the threatening statement, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; and 4) the threatening statement caused the other person reasonably to be in sustained fear for his own safety, regardless of whether appellant actually intended to carry out the threat. (Melhado, supra, 60 Cal.App.4th at p. 1536.)

[10] There is a conflict among the Court of Appeal authorities with respect to whether the failure to give a unanimity instruction is Watson error (People v. Watson (1956) 46 Cal.2d 818, 836) or Chapman error (Chapman v. California (1967) 386 U.S. 18). (See e.g., People v. Wolfe, supra, 114 Cal.App.4th at pp. 186-188.) In this case, regardless of the standard we apply, we reach the same conclusion.