P. v. Lineker CA1/5

Filed 9/21/26 P. v. Lineker CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,
A173151
v.
MICHAEL LINEKER, (Contra Costa County
Super. Ct. No. 04-23-00748)
Defendant and Appellant.

Upset that John Doe, his neighbor, ran over a stray cat that he fed and
unofficially adopted, defendant and appellant Michael Lineker broke the
windows of John Doe’s truck with a pickaxe and returned home. While John
Doe and his wife, Jane Doe, were inspecting the damage to the truck in their
driveway, Lineker grabbed a gun, left his home, and fired multiple shots in
their direction. The People charged Lineker with, among other things, one
count of assault with a semiautomatic firearm against “Jane Doe and John
Doe.” The jury convicted Lineker on that count, and he now appeals,
contending that the trial court erred by failing to instruct the jury that it had
to unanimously agree on the victim or victims of the assault. We find that
any instructional error was harmless beyond a reasonable doubt and affirm.

1
BACKGROUND
A. Procedural History
An information charged Lineker with six felonies based on two separate
incidents that occurred on May 2, 2023: (1) attempted murder of “Jane Doe
and John Doe” (Pen. Code,1 §§ 664/187, subd. (a); count 1); (2) shooting at an
inhabited dwelling (§ 246; count 2); (3) assault with a semiautomatic firearm
on “Jane Doe and John Doe” (§ 245, subd. (b); count 3); (4) vandalism with
over $400 in damages (§ 594, subd. (a); count 4); (5) criminal threats against
Christopher Martin (§ 422; count 5); and (6) second degree burglary (§ 459,
subd. (a); count 6). The information also charged Lineker with a
misdemeanor, exhibiting a firearm (§ 417, subd. (a)(2)(B); count 7). Counts 1
through 4 related to the first incident and counts 5 through 7 related to the
second incident.2
As to count 1, the information alleged that Lineker “intentionally
discharged a firearm, a handgun” (§ 12022.53, subd. (c)). As to counts 3 and
5, it alleged that Lineker “personally used” a firearm (§ 12022.5, subd. (a)).
Finally, the information alleged three aggravating circumstances.
The jury acquitted Lineker of attempted murder (count 1) and the
lesser included offense of attempted voluntary manslaughter (§§ 664/192). It,
however, found Lineker guilty on all remaining counts. It also found true the
allegations of firearm use as to counts 3 and 5. After the verdict, Lineker
waived a jury trial as to the aggravating factors.
At sentencing, the trial court found two of the aggravating factors to be
true. The court then sentenced Lineker to 12 years in state prison: the
midterm of six years on count 3, the midterm of four years on the firearm

1 All statutory references are to the Penal Code.
2 Only count 3 is at issue in this appeal.

2
enhancement as to count 3, one-third of the midterm of two years (eight
months) on count 5, and one-third of the midterm of four years (16 months)
on the firearm enhancement as to count 5. The court also sentenced Lineker
to concurrent terms of two years each on counts 4 and 6 and imposed and
stayed, pursuant to section 654, a five-year sentence on count 2 and a six-
month sentence on count 7. Finally, the court awarded Lineker 769 days in
pre-custody credits and ordered him to pay restitution.
Lineker timely appealed.3
B. Evidence at Trial4
1. Prosecution Evidence
John and Jane Doe, who are married, lived in a house on a cul-de-sac
with their two adult children. Lineker, who lived with his father, mother,
and sister, was their neighbor. The driveways of the homes of the Does and
Lineker were “kind of diagonal from each other.”
On May 2, 2023, Jane Doe was at home with her daughter. At around
1:30 p.m. that day, John Doe, who was driving home in his truck with his
son, accidentally ran over a cat in the cul-de-sac. After John Doe parked the
truck in his driveway, he spoke with a woman at Lineker’s house and told her
that he accidentally ran over the cat. John Doe eventually returned home.
Meanwhile, Lineker’s father and sister went outside to pick up the cat
and put it in a trash can. According to Lineker’s father, Lineker was “upset”
and “agitated” because he would not help Lineker bury the cat.

3 We requested and received supplemental briefing on the question of

“[w]hether the ‘continuous course of conduct’ exception alleviates the need for
a[ ] unanimity instruction in this case.”
4 Because Lineker only challenges his assault conviction, we only

recount the evidence relating to that conviction here.

3
Around 1:50 p.m., John and Jane Doe heard a “loud” “booming” noise.
Their daughter told them that Lineker was “bashing” the windows of their
truck. Jane Doe looked out the window and saw Lineker walking away from
their home with a “bat” in his hand. She then went outside to inspect the
damage to the truck.
John Doe also went outside and saw the broken windows on the side of
the truck closest to his front door. He told Jane Doe to call the police. While
she was calling the police, John Doe went to inspect the other side of the
truck.
While Jane Doe was standing next to the truck and talking on the
phone with the police, she saw Lineker exit his home with a black gun.
According to Jane Doe, Lineker pointed the “gun up” “towards” her. Jane
Doe, who heard multiple shots, “screamed[,] turned around[,] and fell” on the
driveway. She “managed to get up and run in the house.” As she was
running, Lineker was “still shooting.” She testified that she believed that
Lineker was shooting at her. At the start of the shooting, Jane Doe was
about two to three car widths away from John Doe.
John Doe also saw Lineker standing to the side of his house with a
black “rifle.” According to John Doe, who made “direct eye contact” with
Lineker, Lineker “was rocking” in a crouched position and pointing the “rifle”
in his “direction.” John Doe yelled at Jane Doe “to get in the house, and . . .
went around the [truck] to shield” himself from any gunfire. He then heard
multiple gunshots. John Doe eventually ran to the side gate of his home and
reentered his house. Neither John nor Jane Doe found any bullet holes in
their home, truck, or fence.
After hearing six or seven gunshots, Lineker’s father went outside and
saw Lineker “standing beside his car with the door open” and a black “Glock

4
19” in his hand. Lineker’s father, who had taught Lineker about “gun
safety,” asked him “what the hell he was doing.” According to his father,
Lineker calmly responded that he was “shooting” “ ‘at’ or ‘towards’ ” “the
neighbors.” Lineker then drove away.
John Doe 2, who was 14 years old at the time of the trial and lived in
the same cul-de-sac as the Does and Lineker, testified that on May 2, 2023,
he was standing in an upstairs room in his house and “on [his] phone” when
he heard a “loud bang and saw something go right past” him. Glass flew
everywhere, and there were bullet holes in two windows in the room where
John Doe 2 had been standing. One bullet “hit the ceiling” and there was a
bullet hole in a wall. Police, however, were unable to recover the bullets
themselves.
When Officer Geoffrey Morris arrived at the Does’ house, he saw
“damage to the windows” of their truck and glass on the ground by the truck.
He also saw “bullet holes on the second story” of the house next to the Does’
house. But he found no bullet holes in the Does’ house, garage door, fence, or
truck.
After Lineker drove back to the cul-de-sac a little later, he was
arrested. He was “calm” and “cooperative.” The police discovered a “black
semiautomatic Glock 19 . . . with multiple live rounds of ammunition” in the
car that Lineker was driving. The gun was registered to Lineker.
The police discovered “[f]ive shell casings and one live round” in the
same area near Lineker’s driveway. Casings are ejected when a bullet is
fired, and a live round is a bullet that has not been fired. The police
acknowledged that it could have missed some casings.

5
2. Defense Evidence
Lineker testified in his defense. According to Lineker, he was
depressed on May 2, 2023, because he had lost his job in December 2022. On
that day, his sister told him that a stray cat that he named “Cindy” and
regularly fed had been run over by a neighbor and died. Lineker was
“absolutely despondent” and asked his father to help him bury the cat. When
his father refused, Lineker buried the cat himself.
After his sister told him that John Doe had run over the cat, Lineker
used a “pickaxe” to break the windows of the Does’ truck. Lineker broke the
windows so John Doe could “experience the same feelings that [he was] then
experiencing” and to get John Doe to “slow down . . . and maybe turn down
the stereo.”
Lineker then returned to his house, left the pickaxe, and got his
semiautomatic Glock 19 and ammunition even though he had not shot a gun
in about 10 years. After leaving his house with the Glock, Lineker saw the
top of John Doe’s head as John Doe was inspecting the truck. Lineker,
however, denied seeing Jane Doe in the driveway.
As he walked towards his own car, Lineker testified that he calmly
“shot” at least five times to let John Doe know that he broke the windows of
the truck.5 Lineker claimed that he was aiming at “the side of the hill” “way
up behind” John Doe and did not intend to shoot into John Doe 2’s house. He
also repeatedly denied pointing his gun at any person. According to Lineker,
he did not shoot into the ground because he was worried about ricochets, and
he did not shoot into the air because the bullet had “to come down

5 Lineker conceded that he could have fired his gun “at least seven”

times.

6
somewhere.” As he was shooting, Lineker testified that he saw John Doe
moving “to the side of the garage . . . at a casual pace.”
When his father asked him what he was doing, Lineker testified that
he told his father he was “[s]hooting at the neighbors.” (Italics added.) He
claimed that he gave a “flippant answer” because he did not have time to tell
his father that he was “shooting into the center of the hill over this guy’s
head.” Lineker then drove away.
Toby Gloekler testified for the defense as an expert in “forensic
engineering.” Based on where the two bullets struck the windows of John
Doe 2’s house, Gloekler estimated that the bullets would have passed
“approximately nine feet” above the head of a person standing where John
Doe had been standing during the shooting. And based on where Lineker
was likely standing when he fired his gun, Gloekler estimated that Lineker,
who was roughly 132 feet away from the truck, aimed his gun at an angle
“between four and six degrees” above “horizontal.” Gloekler further testified
that if Lineker had been “shooting at a moving target in the” Does’ driveway,
Gloekler would have expected to find “strike marks on the [Does’] garage
door” or house. Gloekler, however, conceded that shooting at a moving target
“approximately 120 to 130 feet away” would be “challenging” especially if the
shooter had not shot a gun in 10 years. He also acknowledged that he could
not determine “what [Lineker] was aiming at.”
DISCUSSION
“Assaults upon separate victims, even though perpetrated by a single
individual during an indivisible course of conduct, each comprise a separate,
punishable offense.” (People v. McNeill (1980) 112 Cal.App.3d 330, 334
(McNeill).) Thus, Lineker could have been charged with two separate
assaults with a semiautomatic firearm—one as to John Doe and one as to

7
Jane Doe. The People, however, charged him with a single count of assault
on “Jane Doe and John Doe.” Despite this, the jury instructions did not
identify the alleged victim or victims of the assault or require that the jury
agree unanimously on the victim or victims. Lineker now contends that the
trial court erred in failing to do either. He further contends that either
instructional error was prejudicial because the jury could have found him
guilty of assault even if it did not agree on whether John Doe, Jane Doe, or
both were the target or targets of the assault. We disagree. Even if the
instructions were erroneous, we find any error harmless beyond a reasonable
doubt under Chapman v. California (1967) 386 U.S. 18 (Chapman).6
A. Additional Facts
To instruct the jury on the elements of assault with a semiautomatic
firearm, the trial court used CALCRIM No. 875. As relevant here, the court
instructed the jury that: “The defendant is charged in Count 3 with assault
with semiautomatic firearm, in violation of . . . [s]ection 245(b).· To prove that
the defendant is guilty of this crime, the People must prove that: [¶] First,
the defendant did an act with a semiautomatic firearm that by its nature
would directly and probably result in the application of force to a person; [¶]
Second, the defendant did that act willfully; [¶] Third, when the defendant
acted, he was aware of facts that would lead an objectively reasonable person

6 Accordingly, we need not determine whether: (1) the trial court
should have identified the victim(s) in its CALCRIM No. 875 instruction
(People v. Velasquez (2012) 211 Cal.App.4th 1170, 1177); (2) a unanimity
instruction was required under the continuing course of conduct exception
(compare People v. Flores (2007) 157 Cal.App.4th 216, 223 with McNeill,
supra, 112 Cal.App.3d at p. 335); and (3) the erroneous failure to give a
unanimity instruction is reviewed under Chapman or People v. Watson (1956)
46 Cal.2d 818 (see People v. Matute (2002) 103 Cal.App.4th 1437, 1448 [“the
Courts of Appeal are split concerning the proper standard for reviewing
prejudice for failure to give a unanimity instruction”]).

8
with knowledge of these facts to realize that his act by its nature would
directly and probably result in the application of force to someone; [¶] And
fourth, when the defendant acted, he had the present ability to apply force
with the semiautomatic firearm.” (Italics added.) The court did not,
however, give a unanimity instruction, requiring that all jurors agree on the
victim or victims of the assault. The verdict form also did not require the
jury to identify the victim or victims of the assault. Instead, it simply asked
the jury to determine whether Lineker committed “assault with a semi-
automatic firearm, in violation of . . . section 245(b), on or about May 2, 2023,
as charged in Count Three of the Information.”7
In her closing argument, the prosecutor explained that “the core of the
case is that [Lineker] had a firearm and shot it at (John Doe) and (Jane
Doe).” (Italics added.) She emphasized that Lineker must have known that
Jane Doe was in the driveway because of her screaming and that Lineker
admitted that he told his father that he was “shooting at the neighbors,” and
not just one neighbor. She also repeatedly argued that Lineker shot at both
John and Jane Doe. Finally, the prosecutor recited the elements of the
assault instruction given by the trial court without specifying John Doe, Jane
Doe, or both as the victim or victims.
Defense counsel countered that Lineker was not shooting at either
John or Jane Doe. For example, he argued that Lineker’s “gun was never
pointed at either” John or Jane Doe. (Italics added.) In doing so, he stressed
that the absence of bullet holes “in the garage, the house windows, the fence
or any other places where (John Doe) or (Jane Doe) was standing” precluded
a finding that Lineker’s shots “would directly and probably result in the

7 It does not appear that the trial court provided the jury with the

information.

9
application of force to someone.” (Italics added.) He also repeatedly cited
Lineker’s testimony that he was “aiming at th[e] hillside” and was “not trying
to kill [his] neighbors.” (Italics added.)
Defense counsel did, however, identify some differences between the
evidence as to John and Jane Doe in his closing argument. For example, he
stated that John and Jane Doe were “30 to 40 feet away” from each other at
the time of the shooting and that two of the shots went “at least nine feet
over” John Doe’s head. He also emphasized that John and Jane Doe, who
were both under great stress, gave “wildly varying accounts of what they saw
when they glanced across the street.” Thus, John Doe’s testimony that
Lineker was shooting at him and Jane Doe’s testimony that Lineker was
shooting at her should not be credited. Finally, defense counsel argued that
Lineker, who admittedly saw John Doe, did not see Jane Doe.
B. Analysis
Lineker contends that, based on the jury instructions, the jury could
have convicted him of assault with a semiautomatic firearm even though
jurors may have disagreed on whether John or Jane Doe was the victim of the
assault. We disagree. Because Lineker was only charged with one count of
assault, the jury could have found him guilty so long as it agreed
unanimously on just one victim of that assault. And based on this record, no
reasonable jury could have found that Lineker assaulted Jane Doe without
finding that he also assaulted John Doe. Stated another way, the jury must
have agreed unanimously that Lineker assaulted John Doe.
“Harmless error analysis under” Chapman “entails ‘ “examining the
entire cause, including the evidence, and considering all relevant
circumstances” ’ to determine whether, beyond a reasonable doubt, the error
did not contribute to the verdict. [Citation.] If ‘ “ ‘ “[n]o reasonable jury” ’

10
would have found in favor of the defendant on the” valid theory, “given the
jury’s actual verdict and the state of the evidence, the error may be found
harmless beyond a reasonable doubt.” [Citations.]’ ” (People v. Campbell
(2023) 98 Cal.App.5th 350, 372.)
Here, there was ample evidence at trial that Lineker shot at John Doe.
Corroborating John Doe’s testimony that Lineker shot at him after making
“direct eye contact,” Lineker admitted that he saw John Doe before firing.
Lineker’s own expert also testified that at least two bullets fired by Lineker
passed nine feet over John Doe’s head. By contrast, Jane Doe’s testimony
that Lineker shot at her was not corroborated by any other evidence specific
to her. Under these circumstances, the jury could not have found that
Lineker shot at Jane Doe without finding that he also shot at John Doe. (See
People v. Lueth (2012) 206 Cal.App.4th 189, 199 [where the injury caused by
one alleged beating was corroborated while the injuries caused by another
alleged beating were not, “the failure to give a unanimity instruction was
harmless” “beyond a reasonable doubt”].) Thus, the jury, at a minimum,
must have unanimously agreed that Lineker assaulted John Doe.
To the extent any doubts remain, other evidence and argument at trial
remove them. Immediately after firing his gun multiple times, Lineker
admitted that he told his father that he was “[s]hooting at the neighbors”—
i.e., John Doe and Jane Doe. And in her closing, the prosecutor only argued
that Lineker shot at both John Doe and Jane Doe. Meanwhile, Lineker’s only
defense to the assault charge was that he was shooting at the “hillside”—and
not at John Doe or Jane Doe. By rejecting that defense, the jury must have
found that Lineker was shooting at one or both of them. And based on this
record, the jury could only have found that Lineker was shooting at John Doe
or at both John Doe and Jane Doe. Either way, any instructional error was

11
harmless beyond a reasonable doubt because the jury, which only found
Lineker guilty of one count of assault with a semiautomatic firearm, must
have agreed unanimously on John Doe as the victim of that assault.
Finally, Lineker’s acquittal for attempted murder and voluntary
manslaughter does not compel a contrary conclusion. Both of those offenses
require a specific intent to kill. (See People v. Mumin (2023) 15 Cal.5th 176,
190 [“attempted murder requires a specific intent to kill,” italics omitted];
People v. Memory (2010) 182 Cal.App.4th 835, 864 [attempted voluntary
manslaughter has an “intent to kill requirement”].) By contrast, assault
“does not require a specific intent to cause injury or a subjective awareness of
the risk that an injury might occur.” (People v. Williams (2001) 26 Cal.4th
779, 790.) Thus, Lineker’s acquittals have no bearing on whether the jury
found that he shot at John Doe, Jane Doe, or both of them.
DISPOSITION
The judgment is affirmed.

CHOU, J.

WE CONCUR.

JACKSON, P. J.
BURNS, J.

A173151/ P. v. Lineker

12