P. v. Fishman



















Filed 2/8/13 P. v. Fishman CA3











NOT TO BE PUBLISHED



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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Placer)

----






>

THE PEOPLE, Plaintiff and Respondent, v. UDI FISHMAN, Defendant and Appellant.

C067955/C069267 (Super. Ct. No. 62093640)

Convicted
of burglary, attempted false imprisonment,
unlawful use of tear gas, and possession of a deadly weapon, defendant Udi
Fishman appeals, contending the trial court erred by: (1) improperly excluding certain href="http://www.mcmillanlaw.com/">impeachment evidence; (2) refusing to
disclose certain e-mails one of the victims sent on her employer’s computer
system; and (3) failing to provide the jury with a unanimity instruction on the
burglary charge. Finding no merit in any
of defendant’s arguments, we affirm.

FACTUAL
AND PROCEDURAL BACKGROUND

Juan Trejo
first met defendant in 1998, when defendant solicited a bid from Juan to build
a 340-foot-long retaining wall on defendant’s property in Los
Gatos.href="#_ftn1"
name="_ftnref1" title="">[1] After Juan built the wall, he continued to do
various work for defendant over the years.
In 2006, he rebuilt the wall after a big part of it collapsed. Juan and defendant thereafter were involved
in litigation involving an engineering firm and the manufacturers of the stone
used in the wall. The litigation
ultimately settled in 2009, with Juan receiving $540,000 and defendant
receiving $290,000. (The money paid to
Juan was apparently for amounts defendant owed him for rebuilding the wall.)

After the
settlement, the relationship between Juan and defendant deteriorated. Juan claimed he loaned defendant $45,000, but
then refused to give defendant any more money after defendant said he needed
“all of it” and that “everybody got rich, except me.” Defendant claimed that work remained for Juan
to do on his property and the $45,000 Juan gave him was not a loan but
repayment for sums defendant had advanced to Juan’s employees on Juan’s behalf
while the wall was being rebuilt.

On September 16, 2009, Juan’s wife,
Christine, was at their home in Placer
County with her brother-in-law,
George Obregon; Juan was working in the Bay Area. A van with what turned out to be fake
PG&E magnetic placards on the side drove onto the property and around to
the back of the house. It was later
determined that the van had mismatched license plates on it, both of which
belonged to other vehicles. Defendant
was the driver.

Upon seeing
the van, Christine went out the back door and approached the van. Defendant, who was wearing sunglasses, an
orange safety vest, and a hat, told Christine he was there to do an audit. She told him to stay there, she was going to
get her husband, but as she walked back toward the house she discovered he was
following her. When she told him to stay
there again, he told her he had left the audit in the van and he had to go get
it.

From the
house, Christine watched defendant get back in the van and start to drive
off. She locked the door and called out
to Obregon, who was in the bathroom. She
watched as defendant appeared to be driving off the property but then stopped,
parked the van again, and this time approached the front of the house. Christine went to the front door and saw
defendant approaching the front stairs with a red canister in his hand. As she yelled at him to get rid of the
canister, he came up to her, telling her that if she would hold the audit he
would get rid of the canister. As she
reached to take the audit from him, he sprayed her in the face with pepper
spray. She stepped back and screamed for
Obregon to help her. Then she turned and
tried to run, but fell to the floor.
Defendant followed her into the house, and when Obregon came out,
approached defendant, and asked him what was going on, defendant sprayed
Obregon in the face with the pepper spray as well. A struggle between the two men ensued, and in
an attempt to get defendant off Obregon, Christine hit defendant with a bottle
and then stabbed him with a knife. She
then ran outside and called 911. While
waiting for the police, she got in the van and saw cardboard laid down in the
back, along with some rope. A wooden table leg altered with a weighted end and
a tennis ball covering the end was later found in the van.

Defendant
was ultimately charged with attempted murder, burglary, attempted kidnapping,
two counts of unlawful use of tear gas, and possession of a deadly weapon (the
table leg). At trial, he admitted going
to the Trejos’ house in disguise, but he claimed it was only so Juan would come
open the gate so they could talk. He
also testified that when he came to the front door, Christine suddenly raised
her hand with a knife in it and stabbed him in the forearm. He claimed the pepper spray discharged when
he was trying to defend his face from Christine’s attack. He also claimed that Christine then ran into
the house, and when he stepped in the house to see who she was talking to,
Obregon lunged at him and knocked him down.
He testified that he probably pressed the trigger on the pepper spray
again “by reflection” when Obregon knocked him down.

The jury
acquitted defendant of attempted murder and attempted kidnapping but convicted
him of burglary, attempted false imprisonment (a lesser included offense of
attempted kidnapping), both counts of unlawful use of tear gas, and possession
of a deadly weapon. The trial court
sentenced defendant to five years in prison.
Defendant timely appealed.href="#_ftn2"
name="_ftnref2" title="">[2]


DISCUSSION

I

>Exclusion Of Impeachment Evidence

A

>Alleged Molestation

In their
motions in limine, the People sought to exclude evidence that in 1996, Juan had
been charged with molesting his stepdaughter (Christine’s daughter). At a preliminary hearing in that case, an
investigator had testified that Christine told her that Juan initially denied
the molestation but then admitted to Christine that he had touched the alleged
victim on the chest and private area.
When the investigator talked to Juan, however, he denied touching the
alleged victim with any sexual intent.
Eventually, the case was dismissed for insufficient evidence. The People told the court that they believed
Christine would maintain the molestation never occurred and Juan continued to
deny the conduct. The People also noted
that while they had not interviewed the alleged victim (who was now an adult),
they were informed that the defense had interviewed her and she had recanted
her allegations. The People acknowledged
that, if proven, the molestation would constitute criminal conduct involving href="http://www.fearnotlaw.com/">moral turpitude and would therefore be
relevant for impeachment purposes, but they argued that the defense should be
precluded from offering evidence relating to the alleged molestation because
“[r]eference to these matters will necessarily create a mini-trial on the
credibility of the allegations.”

For his
part, in his motions in limine defendant sought admission of the alleged
molestation, arguing that it was relevant to impeach both Juan and
Christine. Defendant asserted cursorily
that “[t]he admission of this relevant evidence of impeachment . . . would not
involve an undue consumption of time.”

At the
hearing on the in limine motions, defense counsel told the court he was “not going to retry the [molestation] case”
and that he intended to prove the molestation “by the law enforcement officer
who interviewed the alleged victim . . . and . . . by the statement of the law
enforcement officer that he [sic] took
from Christine Trejo.” The People
responded that retrial of the “whole thing” would be “a necessity” because
“[t]hese are huge explosive allegations that are highly prejudicial to anybody
if they are thrown out there.”

The trial
court ruled that the evidence would not be admitted, concluding that the
probative value of the evidence was not going to outweigh its prejudicial
effect. The court first suggested that
Juan was not a particularly important witness because he “was nowhere near the
scene of this particular incident when it occurred.” The court then stated that “allowing this
issue to be explored is going to be unduly consumptive of the court’s time” and
“allegations of a sexual nature between an adult male and a juvenile female are
explosive and raise prejudices by people, such that it may be difficult for
them to focus on what the issues are at hand as opposed to these particular
issues.” The court observed that the
People would “have to essentially relitigate those issues of the sexual abuse
allegations which ended up in a dismissal of the charges.” The court also observed that it did not
“admit a lot of [this type of impeachment] evidence in any circumstance” and
that it did not “like” this type of evidence.href="#_ftn3" name="_ftnref3" title="">[3] The court closed, however, by stating that it
had “weighed the balance of the probative value versus the prejudicial effect
and the consumption of the court’s time, and on that ground I am going to deny
the motion to admit that evidence.”

On appeal,
defendant contends the trial court “erred in several ways in regard to the
molestation evidence.” Specifically,
defendant contends the trial court:
(1) understated the importance of Juan’s testimony to the
prosecution’s case; (2) “did not consider the impeachment value of the evidence
for Christine”; (3) erroneously determined that the evidence would be unduly
time consuming; (4) effectively “create[d] an automatic exclusion of evidence
of prior sexual misconduct”; (5) “incorrectly held that the defense would have
to prove the allegations of prior misconduct by a preponderance of the
evidence”; and (6) “did not exercise its discretion under the law, relying
instead on its prior position against the admission of Wheeler evidence.” Defendant
also suggests that the trial court’s ruling violated his Sixth Amendment right
to present a defense.

Notwithstanding
defendant’s seriatim challenges to the trial court’s ruling, the issue before
us can be framed much more simply, as follows:
Did the trial court abuse its discretion in excluding evidence of the
alleged molestation under Evidence Code section 352 on the ground that the
probative value of the evidence was outweighed by the danger of undue prejudice
and the fact that its admission would necessitate undue consumption of time? We conclude the answer to that question is
“no.”

In >Wheeler, the Supreme Court explained the
task faced by a trial court considering the admission of evidence of prior acts
of moral turpitude to impeach a witness in a criminal case, as follows: “When exercising its discretion under
Evidence Code section 352, a court must always take into account, as
applicable, those factors traditionally deemed pertinent in this area. [Citations.]
But additional considerations may apply when evidence other than felony
convictions is offered for impeachment.
In general, a misdemeanor--or any other conduct not amounting to a
felony--is a less forceful indicator of immoral character or dishonesty than is
a felony. Moreover, impeachment evidence
other than felony convictions entails problems of proof, unfair surprise, and
moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with
particular care whether the admission of such evidence might involve undue
time, confusion, or prejudice which outweighs its probative value.” (People
v. Wheeler, supra, 4 Cal.4th at
pp. 296-297.)

Here, the
trial court carefully conducted the analysis required by Wheeler and reasonably determined that the probative value of the
evidence that Juan allegedly molested his stepdaughter was outweighed by
considerations of undue prejudice and undue consumption of time. The trial court did not, as defendant
asserts, create an automatic exclusion of evidence of prior sexual misconduct
or refuse to exercise its discretion by relying on a preconceived animosity
toward this type of impeachment evidence.
Rather, the court accurately determined that allegations of sexual
molestation of a minor in a case that has nothing to do with that subject would
create a very real possibility of undue prejudice. More important, the court recognized that
allowing defendant to elicit evidence relating to the molestation allegations
would have required the People to respond with a substantial amount of
additional evidence seeking to refute those allegations. Based on defense counsel’s offer of proof,
defendant wanted to present evidence that Christine’s daughter accused
defendant of certain inappropriate touching and that Christine told the police
investigator that Juan reluctantly admitted to her that he touched the child,
although Juan denied to the investigator that he touched her with any sexual
intent. If that evidence had been
admitted, the People could have been expected to examine both Juan and
Christine at length about what happened, as well as what they told the
investigator and why. The People also
could have been expected to call the alleged victim to testify about what
happened, as well as what she told the investigator and why. And in the end, there was no guarantee, or
even a reasonable expectation, that there would have been sufficient evidence
to convince the jury that Juan molested Christine’s daughter or that Christine
lied about it -- both acts of moral turpitude.

Under these
circumstances, the trial court did not abuse its discretion in refusing to
admit evidence regarding the alleged molestation. We likewise conclude that the exclusion of
this evidence did not violate defendant’s constitutional right to present a
defense.

B

>Prior Litigation

In his
motions in limine, defendant sought the admission of evidence of certain prior
civil litigation relating to Juan’s construction business. According to defendant, in 1993 an individual
(Greenough) sued the Trejos for breach of contract. A settlement was reached, but (according to
defendant) Juan failed to abide by its terms.
Thereafter, in 1994, Greenough obtained a judgment against the Trejos in
the amount of $52,876.74. About five
months later, the Trejos quitclaimed certain real property in Santa Clara to
Juan’s mother.href="#_ftn4" name="_ftnref4"
title="">[4] Greenough’s attorney attempted to enforce the
judgment, but the Trejos refused to provide a list of their assets and
thereafter obtained a discharge in bankruptcy in December 1995.

Defendant
argued that the foregoing evidence should be admitted for impeachment because
“[r]eneging on a settlement agreement is . . . an act of moral turpitude.” Defendant also argued that Christine had
denied she had any interest in Juan’s construction business but the court found
otherwise. Finally, defendant suggested
that the Trejos had committed an act of moral turpitude by refusing to provide
a list of their assets and by transferring property to Juan’s mother “for no
consideration.” Defendant represented
that he would call Greenough’s attorney to testify on the matter.

At the
hearing on the in limine motions, the People asserted that the prior litigation
was “remote” and that if the evidence came in, it would “have to be
rebutted.” Defense counsel argued that
what he wanted to present was the “sequential time line in terms of when the
judgment was entered, when Mr. Trejo declared bankruptcy and when the property
was quit claimed because that is a pretty clear trail.” In effect, as the trial court later
clarified, defense counsel wanted to “prove a fraudulent transfer.”

The trial
court ruled that the evidence was barred by section 1101, subdivision (b) of
the Evidence Code because it was “conduct on a single occasion that is to be
used to show bad character or disposition to commit certain acts.” The court also ruled under Evidence Code
section 352 that the prior incident was “so remote in time and . . . so
susceptible of leading this off on an area that has little if anything to do
with the facts of this case.”
Accordingly, the trial court denied defendant’s motion to admit the
evidence.

On appeal,
defendant contends the trial court “erred in its relevancy determination”
because “[u]nder Evidence Code section 1100, specific instances of misconduct
are admissible to prove a witness’s character trait.” Defendant also contends the court abused its
discretion in excluding the evidence under Evidence Code section 352
because the incident was not remote when compared to “the past history between
the Trejos and Mr. Fishman” and because presentation of the evidence would have
taken less than an hour in a trial that lasted over three weeks.

We conclude
the trial court did not abuse its discretion in excluding the evidence under
Evidence Code section 352.href="#_ftn5"
name="_ftnref5" title="">[5] As for the issue of remoteness, the proximity
of the prior incident to the outset of defendant’s relationship with the Trejos
is immaterial. What mattered here was
the proximity of the prior incident to the time
of trial. Recall that defendant
sought to use this evidence to impeach the Trejos’ anticipated testimony by
showing prior acts of moral turpitude, which (in his view) would have given the
jury a reason to doubt the veracity of their testimony. The trial court did not act unreasonably in
determining that the alleged transfer of property to avoid enforcement of a
money judgment in 1995 was remote for purposes of impeaching the Trejos’
testimony at a trial over 15 years later.

Also, it
was not unreasonable for the trial court to determine (implicitly) that
presentation of evidence relating to the prior litigation would have
necessitated an undue consumption of time and created a danger of confusing the
issues or misleading the jury. By his
offer of proof, defense counsel indicated he wanted to offer the testimony of
Greenough’s attorney essentially to prove that the Trejos fraudulently
transferred real property to Juan’s mother without consideration to protect the
property from enforcement of the judgment.
The quitclaim deed, however, showed that it was signed three years
before it was recorded, well before the judgment. In the trial court, defense counsel asserted
his belief that the date of the signature was “a fraudulent act also and
bankruptcy fraud.” Under these circumstances,
the People reasonably could have been expected to respond to the introduction
of the testimony about the underlying litigation and the quitclaim deed by
eliciting further evidence from other witnesses about the circumstances in
which the deed was made, whether there was consideration to support it, and
related matters, all in an effort to refute any conclusion that the transfer
was fraudulent. Under these
circumstances, the risk of undue consumption of time and diverting the jury
from the issues in the case, combined with the remoteness of the prior
incident, reasonably justified the trial court’s decision to exclude the
evidence of the prior litigation.

II

>Disclosure Of E-Mails

This case
originally was assigned to Judge Mark Curry for all purposes. On August 23, 2010, defense counsel
disqualified Judge Curry under Code of Civil Procedure section 170.6. Two days later, Christine Trejo, who was
employed in the family law department of the court, used the court’s e-mail
system to exchange some e-mails with Judge Curry’s courtroom clerk about the
disqualification and what would happen next.

After Judge
James Garbolino was assigned to the case in Judge Curry’s place, he apparently
learned of the e-mails and disclosed them to both sides. In their motions in limine, the People moved
to exclude the e-mails as irrelevant. For
his part, defendant moved to admit the e-mails as impeachment evidence,
claiming they showed Christine was “using her position as an employee at the
Placer County Superior Court in order to inappropriately exert her influence in
the case,” which defendant asserted was “an act [of] moral turpitude.” Defendant also requested discovery of “[a]ll
e-mails from Christine Trejo’s work e-mail at the Placer County Superior Court
regarding [his] current criminal case.”

The court
(Judge Garbolino) determined that Christine’s “actions [we]re susceptible of
inquiry to determine whether or not anything ha[d] occurred which could or
might influence the outcome of this case within the system.” Accordingly, on October 27, 2010, the
court ordered that “all communications originated by [Christine] through the
Placer County Superior Court e-mail system commencing with September 16, 2009
[the date of the underlying incident], be made available to the court in
camera.” In its order, the court stated
that after identifying “any e-mails . . . wherein the subject matter of the
case is mentioned in any manner,” the court would “determine if there is any
potential issue regarding privacy or confidentiality.” The court would then reveal all of the
e-mails to Christine’s attorney and entertain any claim of privilege as to
those e-mails. The court “retain[ed] the
discretion to invite all counsel to brief and argue the applicability of
privilege to any communications otherwise deemed potentially relevant by the
court.” After culling out any e-mails
the court determined were privileged, the court would then release any
potentially relevant but unprivileged e-mails to the parties.

Ultimately,
the court identified numerous e-mails “that arguably related to the Fishman
case.” Among those, the court identified
over 40 e-mails as containing privileged communications between Christine and
her attorney. The court also identified
one e-mail from Christine to the court’s human resources department that
contained health-related privileged information. (That e-mail “dealt with [Christine’s]
communication to HR concerning health issues and available employee
benefits.”) After his review of those
e-mails, Christine’s attorney claimed privilege, and the court sustained that
claim. Accordingly, the court did not
turn the privileged e-mails over to the parties, but did turn over an
unidentified number of potentially relevant e-mails that were not
privileged.

In July
2011, defendant’s appellate counsel filed an application to augment the record
on appeal. Among other things, he asked
that the clerk’s transcript be augmented to include “[t]he emails obtained by
the trial court as a result of its Order dated October 27, 2010.” Specifically, he requested that the e-mails
disclosed to the parties should be made part of the record on appeal and the
e-mails withheld as privileged should be forward to this court under seal.

We granted
defendant’s motion to augment. Because the original printouts of the privileged
e-mails the trial court had reviewed had not been preserved, the court had to
“reconstruct the group of privileged emails from the database used prior to
trial.” The court was able to retrieve
all of the e-mails that had been withheld on the basis of attorney-client
privilege but was unable to locate the one e-mail that had been withheld as
containing privileged health information.

On appeal,
defendant asserts that the “[t]he trial court erred in holding that [Christine]
had any privilege to prevent the disclosure of her emails, which had been sent
over the government email.” Defendant
also argues that because the trial court could not produce the one
health-related e-mail it withheld, his “convictions should be reversed because
of the failure to produce a complete record for” appeal.

We take
defendant’s second point first. It may
well be true, as defendant argues, that reversal is required where “court
reporters’ notes of significant portions of the proceedings were lost or
destroyed and none of the original participants could sufficiently reconstruct
pertinent events to formulate an accurate and complete settled statement to
address the claims presented on appeal.”href="#_ftn6" name="_ftnref6" title="">[6] (People
v. Hawthorne (1992) 4 Cal.4th 43, 64.)
That is a far cry from what we have here, however. Here, all that is missing is a single e-mail
that the trial judge attested under oath was an e-mail from Christine to the
court’s human resources department “concerning health issues and available
employee benefits.” The trial judge
further attested that he “determined that email contained privileged
information, and additionally was not relevant to the Fishman case.” Defendant does not try to explain how, given
the subject matter the trial judge identified, such an isolated document could
be considered the equivalent of court reporters’ notes of significant portions
of the proceedings. Furthermore,
defendant makes no effort to posit a theory of how such an e-mail could have
contained information that would have had a chance of being admitted into
evidence, let alone being of such value that it could have made a difference in
the jury’s determination of the case.

It is
fundamental that “[n]o judgment shall be set aside, or new trial granted, in
any cause . . . for any error as to any matter of procedure, unless, after an
examination of the entire cause, including the evidence, the court shall be of
the opinion that the error complained of has resulted in a miscarriage of
justice.” (Cal. Const., art. VI, §
13.) Under the circumstances here, we
cannot say that the trial court’s failure to preserve the one health-related
e-mail it withheld has resulted in a miscarriage of justice. In fact, the argument borders on frivolous. Accordingly, we reject defendant’s argument
that we must reverse his convictions because the trial court could not produce
that e-mail for inclusion in the record on appeal.

Turning to
the remaining argument, as we have noted already, defendant asserts that “[t]he
trial court erred in holding that [Christine] had any privilege to prevent the
disclosure of her emails, which had been sent over the government email.” In other words, he claims that the
circumstances of Christine’s communications with her attorney prevented the
attorney-client privilege from attaching to those communications. In support of this claim of error, defendant
relies solely on Holmes v. Petrovich
Development Company, LLC (2011) 191 Cal.App.4th 1047, which he contends
held that “a person, who knows that the computer used [to send e-mail] is not
secure and may be examined in the normal course of business, has waived any
privilege to the contents of the transmittal.”
That was not the holding in Holmes,
however. In Holmes, this court held that an employee could not claim
attorney-client privilege over e-mails she sent to her attorney over her
employer’s computer “after being warned that [the computer] was to be used only
for company business, that e-mails were not private, and that the company would
randomly and periodically monitor its technology resources to ensure compliance
with the policy.” (Id. at pp. 1068-1069.)

Here,
defendant points to no similar evidence about the policies governing the
court’s computer system and what Christine knew about those policies. Furthermore, defendant points to nothing in
the record to show that he ever challenged the trial court’s determination that
the e-mails were privileged. Had he done
so, perhaps the record would have been more developed on the circumstances
surrounding Christine’s use of the court’s computer system to communicate with
her attorney. As it is, the record on
appeal contains no such information.

It is
fundamental that a judgment challenged on appeal is presumed correct and the
appellant bears the burden of affirmatively demonstrating error. (E.g., People
v. Sullivan (2007) 151 Cal.App.4th 524, 549.) Here, defendant seeks to show that under the
principles set forth in Holmes,> the trial court erred in sustaining
Christine’s claim of privilege as to her communications with her attorney using
the court e-mail system. To make that
showing, defendant would have to point to evidence demonstrating that Christine
had reason to know that her communications with her attorney over that e-mail
system would not be confidential. He
has not done so. All we know is that
Christine used her employer’s e-mail system.
That is not enough to carry defendant’s burden of affirmatively
demonstrating trial court error in sustaining Christine’s claim of
privilege. Accordingly, we find no such
error.href="#_ftn7" name="_ftnref7" title="">[7]

III

Unanimity Instruction On Burglary

Defendant
contends the trial court erred in failing to instruct the jurors that they had
to unanimously agree on which act constituted the entry necessary to convict
him of burglary and on what felony he intended to commit when he entered. We
disagree on both points.

“In a
criminal case, a jury verdict must be unanimous. . . . Additionally, the jury must agree unanimously
the defendant is guilty of a specific
crime. [Citation.] Therefore, cases have long held that when the
evidence suggests more than one discrete crime, either the prosecution must
elect among the crimes or the court must require the jury to agree on the same
criminal act. [Citations.] [¶]
This requirement of unanimity as to the criminal act ‘is intended to
eliminate the danger that the defendant will be convicted even though there is
no single offense which all the jurors agree the defendant committed.’ . .
. [¶]
On the other hand, where the evidence shows only a single discrete crime
but leaves room for disagreement as to exactly how that crime was committed or
what the defendant’s precise role was, the jury need not unanimously agree on
the basis or, as the cases often put it, the ‘theory’ whereby the defendant is
guilty. [Citation.] The crime of burglary provides a good
illustration of the difference between discrete crimes, which require a
unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified
intent.^[href="#_ftn8" name="_ftnref8"
title="">[8]^] (Pen. Code, § 459.) If the evidence showed two different entries
with burglarious intent, for example, one of a house on Elm Street on Tuesday
and another of a house on Maple Street on Wednesday, the jury would have to
unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single
entry, but possible uncertainty as to the exact burglarious intent, that
uncertainty would involve only the theory of the case and not require the
unanimity instruction.” (>People v. Russo (2001) 25 Cal.4th 1124,
1132-1133.)

The
foregoing passage from Russo, which
defendant acknowledges, disposes of the latter half of his unanimity
argument. He insists, however, that it
does not. Specifically, he “does not
dispute this state of the law as it relates to the crime of general offense
burglary,” but he argues that “the state of the evidence as to [his] use of the
pepper spray and the entry into the house required the giving of a unanimity
instruction . . . to ensure that all the jurors agreed on the
specific felonious intent underlying the burglary charge.” He contends that is so in this case because
“there was not sufficient evidence to support a finding that [he] entered the
house with intent to commit . . . attempted kidnapping,” and therefore “the
verdict on the burglary count was necessarily predicated on a finding that [he]
entered with the intent to unlawfully use pepper spray,” but “there were two
instances of [his] use of pepper spray” -- one at the threshold (against
Christine) and one inside the house (against Obregon). He contends that if Christine’s testimony is
credited, the first use of pepper spray occurred when he had not yet entered
the house, which left only the theory that he entered the house with the intent
to use the spray again, which he
contends was not supported by sufficient evidence. From this line of reasoning, he concludes
that the jury was misled because “the jury was instructed that [it] did not
need to agree on the underlying intent.”

Frankly, we
cannot make any sense whatsoever of the foregoing argument. Russo
makes clear that no unanimity instruction is necessary on the felonious intent
element of burglary, and it admits of no exception. On the evidence here, and in light of the
jury’s verdicts, it appears the jurors decided that defendant entered the
Trejos’ house with the intent to unlawfully use the pepper spray he was
carrying. Whether there was sufficient
evidence that defendant harbored that intent, under Russo no unanimity instruction was required on the intent element
of the burglary charge. Accordingly, the
latter half of defendant’s unanimity argument is without merit.

We reach
the same conclusion with respect to the first half of his unanimity argument --
that the jurors should have been instructed they had to unanimously agree on
what act constituted the entry for purposes of the burglary charge. Defendant bases this argument on the premise
that “there were two separate and distinct acts upon which the prosecutor based
the burglary charge: 1) the spraying of [Christine] while [defendant] stood
outside the threshold of the door and some of the spray itself was alleged to
have entered the house; and 2) the entry of [defendant] into the house after he
sprayed [Christine].” The prosecutor
argued no such thing, however.

Defendant’s
assertion that the prosecutor offered the jury alternative theories of what
constituted the entry for purposes of the burglary charge is based on a single
statement the prosecutor made to the jury in closing argument, but defendant
fails to quote the prosecutor’s statement in its entirety. When the prosecutor’s entire statement to the
jury is considered, it is apparent that he was not distinguishing between two
possible manners of entry; rather, he was discussing the intent element of the
crime, arguing to the jury that while defendant’s “ultimate purpose was . . .
the intended kidnap or killing of [Christine],” the jury could find that he
committed burglary by entering with the intent to unlawfully use pepper spray
because of the fact that “he entered th[e] threshold with the pepper spray and
then continued, pursued her, and used it again on . . . Obregon.”

With the
prosecutor’s argument properly in context, it is apparent that the prosecutor
did not offer the jury the choice of two different entries in determining
whether defendant committed burglary.
Even assuming for the sake of argument, however, that notwithstanding
the prosecutor’s theory the jury could have chosen between the entry of the
pepper spray and the entry of defendant himself as the means of entry, no
unanimity instruction was necessary here because, as the People point out, “[a]
unanimity instruction is not required where the offenses are so closely
connected to form a single transaction.”
(People v. Thompson (1995) 36
Cal.App.4th 843, 851.) This exception “
‘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.’ ” (Ibid.) Such was the case
here.

Defendant
contends the single transaction exception to the requirement of a unanimity
instruction does not apply here because his “conduct was the source of much
dispute at trial” and “[i]n setting forth proper jury instructions, the court
cannot ignore the defense evidence.”
While both of these propositions are true, they do not support
defendant’s conclusion that a unanimity instruction was required. Under the principles explained in >Russo, a unanimity instruction was
necessary only if the evidence left open the possibility that defendant
committed two distinct burglaries and
there was a danger that the jury might have found him guilty without agreeing
on which burglary he committed. That
possibility did not exist here. If the
jurors had credited defendant’s version of events, they would not have found
him guilty of any burglary at all. On
the other hand, if the jurors credited the prosecution’s evidence -- as they
did -- they could have found him guilty of only one burglary because the two
supposed entries were so closely connected in time and space that there was no
reasonable basis for the jury to distinguish between them. Under these circumstances, no unanimity
instruction was necessary.

DISPOSITION

The
judgment and the restitution order are affirmed.









ROBIE , J.







We concur:







BLEASE , Acting P. J.







DUARTE , J.