Filed 6/25/26 P. v. Hicks CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A169319
v.
KENNETH HICKS, (San Mateo County
Super. Ct. No. 23NF010929A)
Defendant and Appellant.
A jury found that appellant Kenneth Hicks committed a felony by
attempting to prevent an executive officer from performing an official duty.
(Pen. Code, § 69; statutory references are to this code unless otherwise
indicated.) On appeal, Hicks contends the judgment is not supported by the
evidence and the trial court committed prejudicial evidentiary and
instructional errors. We affirm.
BACKGROUND
Appellant was charged by felony information with one count of
violating section 69. “Section 69 makes it a crime to ‘attempt[ ], by means of
any threat or violence, to deter or prevent an executive officer from
performing any duty imposed upon the officer by law’ and to ‘knowingly
resist[ ], by the use of force or violence, the officer, in the performance of his
or her duty.’ [Citation.] Accordingly, there are two ways to violate
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section 69.” (People v. Morgan (2026) 19 Cal.5th 132, 139, quoting § 69,
subd. (a) (§ 69(a)).) Appellant was tried on the first theory, that he attempted
to deter or prevent an executive officer from performing an official duty.
Trial Evidence
The incident that led to this case occurred outside the San Francisco
International Airport on June 27, 2023, at around 2:40 a.m., a time when
access to the airport was restricted. Between 10:00 p.m. and 6:00 a.m.,
airport entry is limited to authorized personnel, ticketed passengers, or
persons transporting ticketed passengers. These restrictions deter crime,
including crime committed by trespassers and transients, which is a serious
problem at the airport.
On the morning in question, San Francisco Police Officer Randy Tiffany
went to a bus stop at the international terminal to meet a SamTrans bus.
Appellant and a few other people alighted from the bus, and Tiffany informed
them the airport was closed except to employees and ticketed passengers.
Appellant told the officer he “was catching a flight to Vegas.” Tiffany asked
to see documentation of a booked flight, but appellant had none. Tiffany gave
appellant the option of getting back on the bus or coming back after
6:00 a.m., but appellant “was not having it.” Tiffany repeatedly told
appellant that only ticketed passengers could enter the airport and appellant
“got more and more agitated,” to the point that he was belligerent and yelling
at the officer.
Appellant told Tiffany, “ ‘I don’t give a f***. I’m going in.’ ” Given the
circumstances at that point, including appellant’s escalating agitation, and
expressed intention to enter the airport no matter the law, Tiffany was on
alert of a potential security problem and told appellant that he was going to
detain appellant to stop him from trespassing. Appellant replied, “ ‘F*** you.
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Detain me.’ ” Tiffany requested identification, which appellant did not have,
but he gave his name and date of birth. Tiffany contacted dispatch for a
records check and requested backup. While Tiffany waited for the dispatch
return, appellant became “fidgety” and “just started walking away.” Tiffany
told appellant he was detained and not free to leave, but appellant kept
walking, heading directly toward the freeway. Tiffany repeated that
appellant was not free to leave, but appellant was still saying “ ‘I’m going to
walk off.’ ”1
At that point, Tiffany decided to put appellant in handcuffs. He
grabbed appellant’s arm, and said, “ ‘I’m going to put you in handcuffs.’ ”
Appellant “ripped his arm away,” telling the officer not to touch him, and
stating “ ‘Touch me, I’ll f*** you up.’ ” Tiffany responded that appellant was
under arrest for threatening a police officer, and made another attempt to
place appellant in handcuffs. Appellant reiterated, “ ‘Touch me again, watch,
I’ll f*** you up.’ ”
Officer Tiffany repeatedly directed appellant to turn around and put
his hands behind his back, but appellant refused, squaring up to face Tiffany
“with his hands balled into fists down by his waist in a challenging manner.”
Appellant’s threats, physically aggressive behavior, and use of force to
prevent being handcuffed, caused Tiffany to fear an attack, and given the
circumstances, he elected to use his pepper spray. Tiffany told appellant,
“ ‘I’m going to spray you in the face if you don’t comply,’ ” as he pointed the
cannister directly at appellant’s face. Appellant responded, “ ‘F*** you.
1This incident was partially recorded on surveillance video admitted
into evidence at trial. The record indicates that the video showed appellant
as he got off the bus, and it showed his subsequent interaction with Tiffany
up to the point that he walked away from the officer, who then followed him
to an area that was not captured by the video.
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Spray me.’ ” Tiffany attempted again to handcuff appellant without using
force, but when appellant “squared off again,” Tiffany sprayed one quick
burst of the pepper spray into appellant’s face. Appellant seemed shocked,
and swore again, but he complied with Tiffany’s directive to get down on the
ground, and put his hands behind his back so that he could be handcuffed.2
At appellant’s trial, the jury was told that when the altercation with
Officer Tiffany occurred, appellant was on two grants of supervised probation
and not permitted to leave Stanislaus County for more than 48 hours without
the written consent of his probation officer, nor was he permitted to move out
of the county without prior permission. Appellant also stipulated that he had
neither consent to leave or to move out of Stanislaus when he was arrested at
the airport.
Jury Verdict and Sentence
The court used CALCRIM No. 2651 to instruct on the charge appellant
violated section 69. The jury was instructed the People had the burden of
proving four elements: “1. The defendant willfully and unlawfully used
violence or a threat of violence to try to prevent or deter an executive officer
from performing the officer’s lawful duty; [¶] 2. When the defendant acted, he
intended to prevent or deter the executive officer from performing the officer’s
lawful duty; [¶] 3. A reasonable listener in a similar situation with similar
knowledge would interpret the threat, in light of the context and surrounding
circumstances, as a serious expression of intent to commit an act of unlawful
2 By that time, San Francisco Police Officer Darnell had responded to
Tiffany’s request for backup. As Darnell approached the scene from about 20
feet away, he could see appellant was in an “aggressive stance, like a fighting
stance, towards Officer Tiffany.” Darnell pulled out his baton, “ready to take
action,” but then faded back because Tiffany was taking the lead and
indicated that he intended to use the pepper spray.
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force or violence; [¶] AND [¶] 4. When the defendant acted, he knew that the
person was an executive officer.”
On September 29, 2023, the jury found appellant guilty of “Trying to
Prevent an Executive Officer from Performing Duty in violation of Penal
Code section 69, a felony.” After the jury was excused, appellant admitted a
prior strike conviction. Appellant waived a jury trial as to aggravating
factors, and the court found true an allegation he was on probation when he
committed the instant offense. (§ 1170, subd. (b)(2).)
Appellant was sentenced on November 17, 2023. The court denied
motions to reduce the conviction to a misdemeanor and to dismiss the strike
prior. The court imposed a midterm sentence, doubled because of the strike,
resulting in an aggregate four-year prison term.
DISCUSSION
I. The Trial Evidence Supports the Jury’s Verdict
In assessing appellant’s insufficiency of the evidence claim, we review
the record in the light most favorable to the prosecution to determine
whether substantial evidence supports a finding by a reasonable trier of fact
that the defendant is guilty beyond a reasonable doubt. (In re Manuel G.
(1997) 16 Cal.4th 805, 822 (Manuel G.); People. v. Iboa (2012) 207
Cal.App.4th 111, 117 (Iboa).)
We are concerned here with the first way of violating section 69, which
occurs when a defendant attempts by threat or violence to deter or prevent an
officer in the performance of his or her official duty. (§ 69(a).) A “threat” in
this context means “a threat of unlawful violence in an attempt to deter the
officer.” (Iboa, supra, 207 Cal.App.4th at p. 118; see also Manuel G., supra,
16 Cal.4th at p. 815.) A violation may be established by a “threat,
unaccompanied by any physical force.” (Manuel G., at p. 814.) Moreover,
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section 69 does not require a showing that the defendant had the present
ability to carry out the threat. (People v. Nishi (2012) 207 Cal.App.4th 954,
968.) However, “there must be sufficient evidence [defendant] threatened
unlawful violence.” (Iboa, at p. 119.) In addition, this method of violating
section 69 “ ‘requires a specific intent to interfere with the executive officer’s
performance of his duties,’ ” which may be established by the surrounding
circumstances. (People v. Sivongxxay (2017) 3 Cal.5th 151, 195; see also In re
M.L.B. (1980) 110 Cal.App.3d 501, 503.)
Guided by these principles, we conclude substantial evidence supports
appellant’s conviction. The jury could have found from the evidence that
appellant intentionally used threats of violence to try to prevent Officer
Tiffany from detaining him because appellant feared being sanctioned for
violating the terms of his probation. Appellant resists this conclusion,
arguing that (1) he did not use force while resisting Tiffany, and (2) his
“utterances did not rise to the level of a ‘true threat.’ ”
Contrary to the first prong of appellant’s argument, Officer Tiffany
testified that appellant “ripped his arm away” from the officer’s grip. The
People characterize such conduct as violence, to which appellant offers no
response in his reply brief. Regardless, appellant’s forceful pulling away from
the officer was one of several undisputed facts relevant to prove that he
threatened unlawful violence. The record also shows that after appellant was
told that he was being detained, he faced off with the officer as if preparing to
fight; and after Tiffany grabbed appellant’s arm, he repeatedly stated that if
Tiffany touched him or tried to place him in cuffs, then appellant would f***
the officer up.
Turning to appellant’s second contention, he argues that his statements
to Tiffany did not constitute threats of violence within the meaning of section
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69 because they were ambiguous and not “ ‘true’ ” threats. Contending that
only true threats are categorically excluded from First Amendment
protection, appellant argues this court must make an independent
determination as to whether his statements to Tiffany constituted protected
speech. (Citing In re George T. (2004) 33 Cal.4th 620, 634 (George T.).)
“To avoid the risk of punishing protected First Amendment speech,” the
term “ ‘‘threat’ ” in section 69 has been construed “to mean a threat of
unlawful violence used in an attempt to deter the officer.” (Manuel G., supra,
16 Cal.4th at pp. 814–815.) When a defendant raises a plausible First
Amendment defense to a section 69 charge, the appellate court makes an
independent examination of the record to determine whether the
communication at issue constitutes a true criminal threat. (People v.
Smolkin (2020) 49 Cal.App.5th 183, 188; Cf. George T., supra, 33 Cal.4th at
p. 634.) Although appellant fails to show he raised a plausible First
Amendment defense, we independently consider the constitutional issue.
True threats that fall outside the First Amendment’s protection have
been defined by our federal and state supreme courts to “ ‘encompass those
statements where the speaker means to communicate a serious expression of
an intent to commit an act of unlawful violence to a particular individual.’ ”
(People v. Lowery (2011) 52 Cal.4th 419, 424.) “ ‘The speaker need not
actually intend to carry out the threat.’ ” (Ibid.) However, when considered
in context and in light of the surrounding circumstances, the statement must
be such that a reasonable listener would understand it as a serious
expression of an intent to commit an act of unlawful violence “rather than an
expression of jest or frustration.” (Id. at p. 427.)
Applying these criteria, we reject appellant’s claim that his statements
did not constitute true threats. Appellant was angry and belligerent, took a
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forward-facing fighting position when asked to turn around and be
handcuffed, and instead of complying with the officer’s repeated directives,
appellant threatened repeatedly to f*** up the officer. Appellant’s
statements, considered in context, support finding that he not only intended
to threaten unlawful violence but also that a reasonable listener in the
officer’s position would understand the threats as such.
Appellant contends his remarks were not true threats because he was
simply employing a “common communication method” to convey his desire to
walk away from the officer. According to this argument, the threat of
violence was merely conditional, and appellant’s only real intent was to leave
the airport, as the officer had previously invited him to do. This logic ignores
the relevant contextual facts. “[C]onditional threats are true threats if their
context reasonably conveys to victims that they are intended.” (In re Ricky T.
(2001) 87 Cal.App.4th 1132, 1137.) Appellant delivered his threats after he
was informed he was not free to leave, and that Tiffany intended to put him
in handcuffs. His threat to “f***” up Tiffany if Tiffany touched him was a
pithy statement that he intended to cause Tiffany physical harm if the officer
continued with his declared course of conduct. Appellant’s acknowledgement
on appeal that his ultimate goal was to extricate himself from the situation is
not only consistent with, but reinforces, the finding that appellant’s remarks
constituted a serious expression of his intent to use the threat of unlawful
violence to prevent the officer from performing his official duties.
II. Evidence Issues
Appellant contends the trial court made prejudicial errors by admitting
irrelevant and unduly prejudicial evidence in violation of Evidence Code
section 352 (section 352). We review the challenged rulings for abuse of
discretion. (People v. Waidla (2000) 22 Cal.4th 690, 724.)
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A. Appellant’s Probation Status
Prior to trial, the People moved for an order permitting evidence that,
at the time of the incident, appellant was on probation “with travel
restrictions,” and was also the subject of two active arrest warrants.
Appellant objected this was improper bad character evidence, not relevant to
any disputed issue. The prosecutor countered the evidence was relevant to
show appellant intended to deter Officer Tiffany; that appellant wanted to
get away because the officer was about to learn about appellant’s probation
status and outstanding warrants. The prosecutor clarified she did not intend
to disclose details about appellant’s underlying offenses and suggested his
probation status and travel restrictions could be handled via a stipulation.
The trial court granted the People’s motion only in part. It found
appellant’s probation status was admissible to show that he was attempting
to deter the officer from performing a duty in connection with the detention
and arrest, but information about appellant’s active arrest warrants would
not be admitted because appellant may not have known about them when the
incident occurred.
Contending on appeal that the trial court violated section 352,
appellant makes three flawed arguments. 3 First, appellant contends that the
fact he was on supervised probation was not relevant to any element of a
section 69 offense. Appellant lists the elements set forth in CALCRIM
No. 2651, and explains why he believes his probation status was irrelevant to
some elements, such as whether he knew Tiffany was a police officer.
However, this evidence was admitted for a specific purpose—because it was
3 Appellant argues the alleged violation of section 352 was so egregious
that it violated his due process rights. (Citing People v. Partida (2005) 37
Cal.4th 428, 438–439.) Since appellant fails to show any error under section
352, his due process claim necessarily fails.
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probative of appellant’s intent to interfere with the officer’s performance of an
official duty—and appellant fails to provide any reason for disputing that
theory of relevancy. “When a trial court clearly relies on a stated rationale
for its ruling, the party challenging that ruling fails to rebut the presumption
of correctness if it does not make some effort to address the court’s rationale
on appeal.” (People v. Benson (2025) 110 Cal.App.5th 1068, 1078, fn. 2.)
Next, appellant argues the trial court’s acceptance of the prosecutor’s
theory of relevancy constituted prejudicial error. According to this argument,
admitting evidence of appellant’s probationary status could not “possibly
show” that appellant intended for Tiffany to perceive appellant’s remarks as
true threats since Tiffany did not know appellant was on probation when
those remarks were made. Again, appellant fails to address the correct issue.
This evidence was neither offered nor admitted to prove how a reasonable
person would perceive appellant’s threatening remarks. Evidence appellant
was violating conditions of his parole was relevant to show his intent to
prevent or deter Tiffany from performing his official duties, which was an
element of the charged offense.
Finally, appellant contends this evidence was highly prejudicial
because there “was a significant danger” the jury would construe it as proof
that appellant “was a violent and dangerous person.” We disagree. The jury
learned only that appellant was on probation, not the crimes that appellant
committed or the fact that two arrest warrants had been issued, thus limiting
the potential for undue prejudice. Appellant fails to show that the court
abused its discretion under section 352 by admitting this evidence as
probative of an element of the charged offense.
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B. Evidence Regarding Criminal Activity At the Airport
Appellant contends the trial court committed reversible error by
permitting the prosecution to present allegedly irrelevant testimony about
criminal activity at the airport. Acknowledging this issue was not preserved
below, appellant contends that his trial counsel’s failure to object to the
testimony constituted ineffective assistance of counsel.
1. Additional Background
Michael Guldner, a detective with the San Mateo Sheriff’s Office, was
called to testify during the People’s case. Guldner, who was assigned to the
investigation unit at the airport, provided the jury with background
information about the types of crimes committed at the airport and the
nature of law enforcement operations there. He described the area of the
airport where appellant was detained, discussed security concerns associated
with the Caltrans bus stop, and explained the role of surveillance cameras in
that area of the airport. When asked specifically about trespassing at the
airport, Guldner responded that it was a “tremendous problem, especially
with a large homeless population and other populations of people who want
to come there to do criminal acts,” and that the problem was more acute
overnight.
Guldner was asked why it is important that only authorized people are
in the airport during nighttime hours, and gave this response: “The airport is
actually closed for business during the hours of 10:00 p.m. and 6:00. And the
reason for that, and trying to not allow traffic in there, is because of that.
The ticket counters are closed at that time. The restaurants are closed at
that time. So the only people who should be doing business in the airport are
people that either work there or are ticketed passengers or delivering people
who are ticketed passengers to and from the airport. It tremendously cuts
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down on vagrancy of people who are just using it for a place to stay as a
shelter, and then look around, prey on victims, those people who are actually
waiting for connecting flights. So there’s no way to purchase tickets there at
the airport, since there is no ticket counters that are currently open at that
time.”
Under cross-examination, Guldner confirmed that most airlines allow
customers to purchase tickets over the phone or internet “pretty routinely.”
He testified that he received a telephone message notifying him of the
incident involving appellant, but he did not participate in the investigation of
the incident involving appellant, had never met appellant, and did not
investigate his history.
2. Analysis
Appellant contends the trial court violated section 352 by admitting
Detective Guldner’s testimony that “the airport was closed during off hours
because trespassing was a ‘tremendous problem, especially with a large
homeless population,’ ” and that a “ ‘great number of people’ ” came to the
airport to charge their phones and steal things. According to appellant,
Guldner’s testimony was not only irrelevant and highly prejudicial, it should
have been excluded under Evidence Code section 1101, as it was the
“equivalent of introducing propensity evidence, which is specifically
prohibited under Evidence Code section 1101, subdivision (a).”
Since appellant did not object to Guldner’s testimony at trial, we
consider whether his trial counsel’s failure to object constituted ineffective
assistance of counsel. The decision “ ‘whether to object is inherently tactical,
and the failure to object will rarely establish ineffective assistance.’ ” (People
v. Carrasco (2014) 59 Cal.4th 924, 985.) “ ‘Unless a defendant establishes the
contrary, we shall presume that “counsel’s performance fell within the wide
12
range of professional competence and that counsel’s actions and inactions can
be explained as a matter of sound trial strategy.” ’ [Citations.] When the
record on direct appeal sheds no light on why counsel failed to act in the
manner challenged, defendant must show that there was ‘ “ ‘no conceivable
tactical purpose’ ” ’ for counsel’s act or omission.” (People v. Centeno (2014) 60
Cal.4th 659, 674–675.)
As an initial matter, we reject appellant’s contention that this
testimony was irrelevant. Guldner’s testimony explained Officer Tiffany’s
role at the airport and the duties he was performing when he encountered
appellant. Without it, jurors familiar with airports only during daytime and
early evening hours might have been concerned that Tiffany did not have a
legitimate basis for attempting to prevent appellant from entering the airport
in the middle of the night. The trial court could reasonably have concluded
that evidence about criminal activity at the airport was relevant to establish
that Officer Tiffany was performing a law enforcement duty by requiring
people—including appellant— to comply with airport entry restrictions.
Appellant’s contention that this evidence was highly prejudicial and
subject to exclusion under Evidence Code section 1101, subdivision (a)
(section 1101(a)) is also wrong. Section 1101(a) provides that evidence of a
person’s character or trait is inadmissible when offered to prove his or her
conduct on a specific occasion. Detective Guldner’s testimony had nothing to
do with appellant or his character. Indeed, he testified unequivocally that he
did not know appellant or participate in the investigation of the incident that
gave rise to this case.
Under these circumstances, appellant fails to carry his burden to prove
trial counsel rendered ineffective assistance. (See People v. Ochoa (1998) 19
Cal.4th 353, 463 [representation not deficient “for failing to make meritless
13
objections”]; People v. Cudjo (1993) 6 Cal.4th 585, 616 [absent “sound legal
basis for objection,” failure to object to evidence “cannot establish ineffective
assistance”].) “The record fails to demonstrate affirmatively that counsel’s
omissions were not based upon a rational tactical basis, such as the
reasonable assumption that such objections would be overruled.” (People v.
Samayoa (1997) 15 Cal.4th 795, 848.)
Even if some aspects of the detective’s testimony were objectionable,
appellant also fails to prove prejudice. It is not reasonably probable he would
have obtained a more favorable result if his trial counsel had objected to the
detective’s testimony. (See, e.g., People v. Garlinger (2016) 247 Cal.App.4th
1185, 1193 [appellant’s burden to “ ‘ “show prejudice flowing from counsel’s
performance or lack thereof” ’ ”].)
III. Jury Instruction Issue
In a supplemental brief, appellant claims the trial court violated a sua
sponte duty to instruct the jury that in order to convict appellant of violating
section 69, jurors had to unanimously agree on which act or acts constituted
the offense. “In criminal cases ‘ “[a] trial court has a duty to instruct the jury
‘sua sponte on general principles which are closely and openly connected with
the facts before the court.’ ” ’ ” (People v. Canizalez (2011) 197 Cal.App.4th
832, 850.) A claim that the court violated this duty is reviewed de novo.
(Ibid.)
In this case, the jury was instructed, pursuant to CALCRIM No. 3550,
that “Your verdict must be unanimous,” meaning that “all of you must agree
to it.” Appellant contends, however, that an additional unanimity instruction
was required under the facts of his case. There are two parts to this
argument. First, appellant points out that section 69 provides that the crime
of attempting to prevent an officer from performing an official duty can be
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committed in more than one way—by violence or threat of violence—and that
the CALCRIM instruction setting forth the elements of this offense permits a
jury to base a conviction on either of the alternative means of violating the
statute. Second, appellant argues that when the prosecutor chooses to
present evidence of more than one act that may constitute the charged
offense, the trial court has a sua sponte duty to instruct “the jurors they need
to unanimously agree on which act their verdict is based.” (Citing People v.
Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) This principle applies here,
appellant contends, because there was evidence he used force to pull his arm
from Officer Tiffany’s grip, the Attorney General has characterized that
conduct as violence in his respondent’s brief, and thus it is not clear whether
appellant was convicted for using violence or threats to attempt to prevent
Officer Tiffany from performing his duty. We reject this argument because
appellant misconstrues the pertinent law.
In a criminal case, “the jury must agree unanimously the defendant is
guilty of a specific crime.” (Russo, supra, 25 Cal.4th at p. 1132, italics
omitted.) Therefore, “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.” (Ibid.) However, “where
the evidence shows only a single discrete crime but leaves room for
disagreement as to exactly how that crime was committed . . . , the jury need
not unanimously agree on the basis or, as the cases often put it, the ‘theory’
whereby the defendant is guilty.” (Ibid.; see also People v. Lueth (2012) 206
Cal.App.4th 189, 196–197 (Lueth).)
Consistent with these settled principles, when “a statute prescribes
disparate alternative means by which a single offense may be committed, no
unanimity is required as to which of the means the defendant employed so
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long as all the members of the jury agreed that the defendant has committed
the offense as it is defined by the statute.” (People v. Sutherland (1993) 17
Cal.App.4th 602, 613; see, e.g., People v. McLemore (1994) 27 Cal.App.4th
601, 606 [irrelevant whether defendant obtained property by trick or
intimidation when end result was that he left store with property he had not
paid for].) Moreover, no unanimity instruction is required when the
defendant has been charged with a single count of violating a statute that
contemplates a continuous course of criminal conduct, either by “ ‘a series of
acts [committed] over a period of time,’ ” or by acts that “ ‘are so closely
connected in time as to form part of one transaction.’ ” (People v. Jennings
(2010) 50 Cal.4th 616, 679 (Jennings); see Lueth, supra, 206 Cal.App.4th at
p. 196.)
Here, appellant was charged with a single violation of section 69, and
he was tried on the single theory that he attempted to prevent an executive
officer’s lawful performance of a duty. To unanimously agree that appellant
committed this offense, the jury did not have to unanimously agree as to the
manner in which the offense was committed. (Russo, supra, 25 Cal.4th at
p. 1132.) Moreover the trial evidence upon which the jury based the verdict
related to only one incident, involving only one officer. Thus, even if
appellant’s conduct could be parsed into discrete criminal acts, those acts
were so closely related as to constitute a single course of conduct in violation
of section 69. (Jennings, supra, 50 Cal.4th at p. 679.)
In his reply brief, appellant mistakenly relies on People v. Castaneda
(1997) 55 Cal.App.4th 1067. In that case, the evidence disclosed two discrete
ways the defendant could have violated a drug possession charge: either by
constructively possessing heroin found on his television set; or by actually
possessing other heroin that was later found in his pocket when he was
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searched at the sheriff’s station. (Id. at pp. 1070–1071.) Because the
possessions were factually distinct and the defendant offered separate
defenses as to each act, the court was required to instruct that the jury had to
unanimously agree on which act constituted the offense. (Id. at p. 1071.)
Here by contrast, appellant’s conduct during his encounter with Officer
Tiffany was the sole basis for the section 69 charge, the acts by which
appellant attempted to prevent Tiffany from performance of an official duty
were not factually distinct, and appellant did not provide separate defenses.
Appellant acknowledges no unanimity instruction is required when a
charge is based on a continuous course of conduct, but he argues that in this
case the trial evidence presented two “divergent factual circumstances”: first,
that appellant resisted Tiffany by way of a verbal threat; and second, that
appellant used violence after Tiffany grabbed him. As our factual summary
reflects, appellant pulled his arm free of Tiffany’s grip just before or in
conjunction with making a verbal threat of violence. Recounting the incident
for the jury, the officer testified, “I grabbed his arm and [he] pulled it away,
and that’s when he said, ‘Touch me, I'll f*** you up.’ ” The record thus belies
appellant’s contention that the jury was presented with “divergent” factual
circumstances. He fails to show that an additional unanimity instruction
was required under the facts presented by this record.
DISPOSITION
The judgment is affirmed.
TUCHER, P. J.
WE CONCUR:
FUJISAKI, J.
RODRÍGUEZ, J.
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