Filed 6/19/13 P. v. Martinez CA2/4 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 FOUR 

 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

ROGELIO MARTINEZ, 

 Defendant and Appellant. 

 B237663 

 (Los Angeles County 

 Super. Ct. No. VA119368) 

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

Ito, Judge. Affirmed. 

Sarah A. Stockwell, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Blythe J. 

Leszkay, Deputy Attorneys General, for Plaintiff and Respondent. 

_________________________________________ 
2 

 Appellant Rogelio Martinez appeals his conviction on two counts of criminal 

threats (Pen. Code, § 422);1

 one count of dissuading a witness by force or threat of force 

or violence (§136.1, subd. (c)(1)); one misdemeanor count of cruelty to a child by 

inflicting injury (§ 273a, subd. (b)); one count of child abuse (§ 273a, subd. (a)); and one 

misdemeanor count of battery (§ 243, subd. (e)(1)). Appellant contends the court erred in 

failing to give a unanimity instruction with respect to the charges of criminal threats and 

dissuading a witness. Alternatively, he argues that if the crimes constituted a continuous 

course of conduct, section 654 applies and the sentences on two counts must be stayed. 

He also claims he is entitled to additional conduct credit under the current version of 

section 4019. We find no error and affirm the judgment. 

FACTUAL AND PROCEDURAL SUMMARY

 Appellant and Elsa A. had three daughters together, Sandra, Suleyma, and 

Guadalupe. Appellant had not lived with them for approximately 10 years. On the 

evening of April 10, 2011, appellant went to their home. The weather was hot, so the 

door was open, and he just walked in. Elsa was in the kitchen, Sandra and 15-year-old 

Guadalupe were in one bedroom, and 16-year-old Suleyma was in another bedroom 

watching television. According to Guadalupe, Elsa told appellant to leave because he 

was “tipsy.” He complained that the television was too loud. Then he walked to the 

room where Suleyma was watching television and screamed at her to turn the volume 

down. Elsa told him he should not get upset, that she was the one who made the rules. 

Appellant slapped Elsa on the right side of her face with an open hand. Guadalupe saw 

this happen from the doorway of the bedroom. 

 Suleyma heard her mother scream and walked quickly into the kitchen where she 

saw her mother holding her cheek and crying. Suleyma told appellant she was “tired of 

this” and was going to call the police. Appellant replied, “‘Oh, you’re gonna call the 

cops? Then I’m gonna kill your mom right here so I can have a reason to go to jail 

because I’m not going to jail for just hitting you guys. I’m gonna go because I’ll kill her. 

 1

 All further statutory citations are to the Penal Code unless otherwise noted. 
3 

That’s going to be a good reason.’” Suleyma dialed 911 on her cell phone. Appellant 

told her he would kill her if she called the cops, then grabbed her phone and threw it on 

the floor. The phone broke. 

 Appellant tried to hit Elsa, then he took a knife from the kitchen and tried to stab 

her. Suleyma struggled with appellant and eventually got the knife from him. She told 

him she hated him, and he should go to jail because what he was doing was bad. 

Appellant said he was going to kill them if they did anything, and threatened to shoot 

Suleyma with a gun. He punched Suleyma at the top of her shoulder and attempted to 

leave the house. Guadalupe was in his way, so he shoved her against the wall and 

“socked” her on the lip. She “went down” and he kicked her in the ribs. Appellant left 

the house, stating he was going to get his gun. Suleyma called 911 from her mother’s 

cell phone. 

 Appellant was not at the house when Los Angeles County Sheriff’s deputies 

responded to the 911 call. They returned to the house after receiving a call that appellant 

had returned. 

 Appellant was arrested and charged by information with criminal threats against 

Elsa and Suleyma (counts 1 and 3); dissuading a witness by force or threat as to Suleyma 

(count 4); misdemeanor cruelty to a child by inflicting injury against Suleyma (count 5); 

felony child abuse against Guadalupe (count 6); and misdemeanor battery against Elsa 

(count 7). The information also alleged two prior prison terms and a prior strike 

conviction. After a jury trial, appellant was convicted as charged and the prior 

convictions were found true. This is a timely appeal from the judgment. 

DISCUSSION 

I 

 Appellant was charged in count 3 with criminal threats against Suleyma; in count 

4 with dissuading a witness by force or threat against Suleyma; and in count 5 with 

cruelty to a child by inflicting injury. Appellant claims there was evidence of multiple 

discrete acts to support each of these counts, and hence a unanimity instruction should 

have been given as to each count. 
4 

 In a criminal case, a jury verdict must be unanimous, and the jury must agree 

unanimously that the defendant is guilty of a specific crime. (People v. Russo (2001) 

25 Cal.4th 1124, 1132.) Thus, where one criminal act is charged, but the evidence 

suggests the commission of more than one such act, either the prosecution must elect the 

specific act relied upon to prove the charge to the jury, or the court must instruct the jury 

that it must unanimously agree that the defendant committed the same specific criminal 

act. (People v. Napoles (2002) 104 Cal.App.4th 108, 114.) This is “‘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. 

Russo, at p. 1132, italics omitted.) 

 There is an exception to the unanimity requirement “where the criminal acts are so 

closely connected that they form a single transaction or where the offense itself consists 

of a continuous course of conduct.” (People v. Rae (2002) 102 Cal.App.4th 116, 122.) 

This exception was applied in People v. Dieguez (2001) 89 Cal.App.4th 266, 275, where 

the defendant was charged with making a series of false statements exaggerating his 

injuries to the same doctor during a single appointment. The court noted that the 

defendant’s false statements were successive, compounding, and interrelated to one 

another, and all aimed at the single objective of obtaining workers’ compensation 

benefits. In addition, the defendant offered exactly the same defense to each of his false 

statements. “There was no reasonable factual basis for the jury to distinguish between 

[defendant’s] various statements, and no reasonable legal basis to distinguish between 

them in establishing a single offense of making a false statement to obtain workers’ 

compensation benefits under [Insurance Code] section 1871.4. Thus, no unanimity 

instruction was required.” (Id. at p. 276.) 

 The same analysis applies in this case. Count 3 charged appellant with making 

criminal threats against Suleyma. Under section 422, subdivision (a), “[a]ny person who 

willfully threatens to commit a crime which will result in death or great bodily injury to 

another person, with the specific intent that the statement . . . is to be taken as a threat, 
5 

even if there is no intent of actually carrying it out, which, on its face and under the 

circumstances in which it is made, is 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 thereby causes that person reasonably to be in 

sustained fear for his or her own safety or for his or her immediate family’s safety, shall 

be punished by imprisonment in the county jail not to exceed one year, or by 

imprisonment in the state prison.” 

 Suleyma testified that when she said she was going to call the police, appellant 

said that if she said anything, he would kill her or go after her mother and sisters. Asked 

if appellant made any threatening statements about using the knife he had picked up, 

Suleyma testified: “He just kept saying that we weren’t gonna get away with it. He kept 

saying he was gonna kill us if we did anything.” He also said he would shoot them with 

his gun, and Suleyma was aware that he had guns. Elsa testified that appellant said 

repeatedly, “I’m going to kill you and your daughter.” She understood this to mean he 

would kill her and Suleyma. According to Suleyma, the entire incident happened very 

quickly, in just a matter of seconds. Asked if it “seems like a blur really” as far as what 

happened, she said, “Yes, sir.” 

 In closing, the prosecutor recounted evidence that appellant threatened to kill Elsa 

with a gun, and he also threatened to stab her. And specifically as to count 3 concerning 

Suleyma, the prosecutor argued that Suleyma called 911 because she was worried about 

appellant’s threat that he was going to kill them. The threats were all made in a very 

brief, continuous period of time, a matter of seconds, during one family fight. They were 

simply slight variations on the same threat to Suleyma and to Elsa—“I’m going to kill 

you”—either by gun, or by knife, which threats caused Suleyma “reasonably to be in 

sustained fear” for her own and her family’s safety. (§ 422, subd. (a).) There was no 

basis for an election, nor for a unanimity instruction as to count 3. 

 Count 4 charged appellant with dissuading a witness by force or threat, in 

violation of section 136.1. Subdivisions (a) and (b) of that section make it a crime to 

“knowingly and maliciously” prevent or dissuade a witness or victim from giving 
6 

testimony in any inquiry authorized by law, or from making any report of a crime to a 

peace officer or from causing the arrest of a person in connection with the crime. 

(§ 136.1, subds. (a), (b).) The information specifically charged that the act “was 

accompanied by force and an express and implied threat of force and violence upon 

SULEYMA [] and a third person and the property of a victim, witness and third person.” 

 Suleyma testified that after appellant hit her mother, she told him she was going to 

call the police. He threatened her; she grabbed her cell phone and dialed 911. “In the 

process of clicking dial, he grabbed my phone, he snatched it off my hands, and he broke 

it.” Just before he grabbed the phone from her, “he said that if I would call the cops he 

would kill me.” In closing, the prosecutor argued with respect to count 4, “The victim on 

that charge is his daughter Suleyma G., the daughter who called 9-1-1 for help but 

unfortunately was not able to do so because he had intercepted by grabbing the phone, 

threw it on the floor, broke it, and also said if I’m going to go to jail for something, I’m 

gonna go to jail for something big.” The prosecutor emphasized that appellant threw the 

phone with so much force that it cracked and would no longer be usable to call for help. 

Given the prosecutor’s election to rely on the breaking of the cell phone as the basis for 

this charge, there was no need for a unanimity instruction on count 4. 

 Count 5 alleged cruelty to a child by inflicting injury on Suleyma, in violation of 

section 273a, subdivision (b). That section provides that a person who “willfully causes 

or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental 

suffering, . . . is guilty of a misdemeanor.” Suleyma testified that when she struggled to 

get the knife away from appellant, she received a cut to her right thumb.2

 She was asked 

whether during the incident in the kitchen where she was trying to grab the knife from 

 2

 At the preliminary hearing, Suleyma testified that the cut occurred when she 

smashed the window of appellant’s truck in an effort to remove his gun. Asked about her 

testimony at trial that she was cut by the knife, she explained that she realized the cut 

occurred from the knife because there was blood in the kitchen and the deputies in front 

of the driveway saw blood on her hand before she broke the truck window. She testified 

that she wrapped her hand in a shirt when she broke the truck window. Her sister 

Guadalupe testified that Suleyma was cut by the knife. 
7 

appellant, “anytime did he punch, kick you, or injure you in any way.” Suleyma said yes, 

“with his fist clenched and closed on my left side of the top shoulder right here, he socks 

me.” The prosecutor argued that the infliction of unjustifiable pain or suffering on a child 

was proved because while Suleyma struggled with her father, “she has a cut from the 

knife in trying to disarm him, and on top of that he takes his hand, makes a fist out of it, 

and then he socks her in the clavicle.” These two injuries occurred as part of the same 

continuous struggle, without any separation in time or location. This is a single, 

continuous transaction, and neither an election nor an unanimity instruction was required. 

 Notably, appellant’s defense to all the charges was the same—that the victims 

were lying (or giving a “new and improved version” of events), and that there was no 

physical evidence presented to support their testimony. “‘The “continuous conduct” rule 

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.’” (People v. 

Dieguez, supra, 89 Cal.App.4th at p. 275.) That is the case as to the challenged counts. 

We find no error. 

II 

 Alternatively, appellant argues that the sentences on counts 3 and 5 should be 

stayed rather than run concurrently if the court concludes the crimes constituted a 

continuous course of conduct. Section 654, subdivision (a) prohibits multiple 

punishment for the same act. The purpose of this section “is to prevent multiple 

punishment for a single act or omission, even though that act or omission violates more 

than one statute and thus constitutes more than one crime. Although the distinct crimes 

may be charged in separate counts and may result in multiple verdicts of guilt, the trial 

court may impose sentence for only one offense . . . .” (People v. Liu (1996) 

46 Cal.App.4th 1119, 1135.) Multiple punishment is proper “if the defendant entertained 

multiple criminal objectives which were independent of each other.” (People v. Solis

(2001) 90 Cal.App.4th 1002, 1021.) Here we find separate objectives which preclude 

application of section 654. 
8 

 A criminal threat, as charged in count 3, has as its objective the creation of 

sustained fear in the person to whom it is directed for his or her own safety or the safety 

of his or her own family. (§ 422, subd. (a).) The evidence supporting this count 

consisted of the verbal threats by appellant that he would kill Suleyma or go after her 

mother and sisters, and that he would kill them if they did anything. Suleyma testified 

that she called 911 that day because she was afraid appellant was going to kill them. 

 As to count 4, dissuading a witness, appellant grabbed the cell phone out of 

Suleyma’s hand and forcefully threw it to the ground in order to prevent Suleyma from 

completing her call to the police. This is a separate objective from the one he had in 

count 3. 

 Count 5, cruelty to a child by inflicting injury, was premised on Suleyma’s 

struggle with appellant to get the knife away from him. In attempting to free himself 

from her grasp, appellant caused Suleyma to sustain a cut to her hand during the struggle 

and he punched her in the clavicle. These willful acts, which took place during one 

struggle, caused her to suffer unjustifiable physical pain, within the meaning of section 

273a, subdivision (b). The objective was entirely separate from the intent to cause fear in 

count 3, or the intent to prevent a report to the police. Section 654 did not preclude 

separate punishment for each of the three counts. 

III 

 Appellant claims he is entitled to additional presentence conduct credit pursuant to 

the October 1, 2011 amendment to section 4019. We disagree. 

 Appellant committed the offenses on April 10, 2011 and was taken into custody on 

April 11, 2011. The version of section 4019 in affect at that time provided that prisoners 

could earn an extra two days of conduct credit for every four days spent in jail. (Former 

§ 4019.) He was sentenced on November 30, 2011, at which point he had been in 

custody for 234 days. The court calculated his conduct credits in accordance with the 

former version of section 4019, dividing his actual credits by four, then multiplying the 

result by two. (People v. Gutierrez (1991) 232 Cal.App.3d 1571, 1573.) This calculation 

resulted in 116 days conduct credit for appellant. 
9 

 Appellant instead seeks the benefit of the amendment to section 4019, which 

became effective law on April 4, 2011, operative as of October 1, 2011. (Stats. 2011, 

ch.15, § 482). Under this amendment, defendants who commit crimes after October 1, 

2011 are entitled to presentence conduct credit at a full, day-for-day rate, “but these new 

credits are expressly available only to defendants who committed their crimes after 

October 1, 2011. (§ 4019, subd. (h).)” (People v. Hul (2013) 213 Cal.App.4th 182, 186.) 

The changes to section 4019 “shall apply prospectively . . . for a crime committed on or 

after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be 

calculated at the rate required by the prior law.” (§ 4019, subd. (h).) Appellant’s conduct 

credit was properly calculated under the prior law. 

 Appellant asserts that principles of equal protection require retroactive application 

of the amended statute. He concedes that in People v. Brown (2012) 54 Cal.4th 314, 328-

329, the Supreme Court reviewed identical issues with respect to an earlier amendment, 

and held that equal protection does not require retroactive application. We are bound by 

this holding under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 

and thus reject his equal protection challenge. 

DISPOSITION 

 The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 EPSTEIN, P. J. 

We concur: 

WILLHITE, J. SUZUKAWA, J.