Filed 5/28/14 P. v. Ward CA2/6 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

MICHAEL SHANE WARD, 

 Defendant and Appellant. 

2d Crim. No. B243098 

(Super. Ct. No. 1351702) 

(Santa Barbara County) 

 Michael Shane Ward (appellant) and Jane Doe had a tumultuous 

relationship. From September to the beginning of November 2010, the relationship 

became more physically abusive, culminating in two days of sexual and physical attacks 

by appellant upon Doe. He appeals from the judgment following his conviction by jury 

of kidnapping (Pen. Code,1 § 209; count 1); forcible rape (§ 261, subd. (a)(2); count 6); 

corporal injury upon a former cohabitant (former § 273.5, subd. (a); counts 2, 3, 4, 13 & 

14); dissuading a witness by force or threat (§ 136.1, subd. (c)(1); counts 5 and 11); 

misdemeanor false imprisonment (§ 236; count 8); misdemeanor witness dissuasion 

 

1 All statutory references are to the Penal Code unless otherwise stated. 
2 

(§ 136.1, subd. (b); count 12); and false impersonation (§ 529; count 15).2 The jury 

acquitted appellant of two forcible rape charges (counts 9 and 10) and one count of 

dissuading a witness by force or threat (count 7). It found true allegations that he used a 

knife in the kidnapping and the count 4 corporal injury; that he inflicted great bodily 

injury on the victim in the kidnapping and all three corporal injury offenses; and that he 

had served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced appellant to 

32 years 4 months in prison. 

 Appellant contends he was denied the effective assistance of counsel; the 

trial court erred by failing to give a unanimity instruction concerning false imprisonment; 

and the court violated section 654 by imposing sentences for crimes which shared the 

same objective. We reverse the false imprisonment and otherwise affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND 

 Doe was in a romantic relationship with appellant for nearly a year. They 

lived together at times. On several occasions they became violent, and pushed or threw 

each other, which sometimes caused bruising. They started to break up in the summer of 

2010. 

October 31, and November 1, 2010, Crimes 

 On Halloween night, appellant and Doe were drinking at Elmer's Bar. They 

were arguing in his car, in the bar parking lot. Appellant told Doe she looked like a 

"whore" in her Halloween costume and she needed to get out of his car. When she tried 

to get out, appellant grabbed her hair to pull her back inside. Doe asked appellant to 

drive her two blocks away, where she had parked her car. It was between 10:00 p.m. and 

midnight and dark outside. 

 Instead of driving to Doe's car, appellant said he was taking her to a field to 

"beat the shit out" of her. He drove about a mile to Graciosa Road, an isolated frontage 

road, where there were no other people or cars. He pulled Doe from his car, forced her to 

the ground, and repeatedly hit her face with his fists. Her head struck the ground. Using 

 2 The jury convicted appellant of lesser included offenses of those charged in 

counts 1, 8 and 12. 
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both hands, appellant strangled Doe, and she struggled to breathe. He asked if she was 

"fucking" someone, and asked her about a man who sent text messages to her phone. 

There was blood in her throat, and she had difficulty breathing. She also had multiple 

bruises and scratches. 

 Appellant dragged Doe back to his car and drove toward Chilli Hill, 

another isolated area, while he repeatedly punched her in the face. They reached Chilli 

Hill in about five minutes. Appellant "rip[ped]" Doe from his car, pushed her to the 

ground, and got on top of her. He punched and strangled her as she lay there. Following 

this attack, she had difficulty breathing. 

 Doe saw headlights approaching. Appellant said he did not want to go to 

prison. Doe tried to escape, but appellant grabbed her hair and pulled her back. She took 

his car keys, pushed the panic alarm, and threw the keys as far as she could. She tried 

without success to reach an area where she would be visible in the other car's headlights. 

When that car left, appellant dragged Doe to his car at knifepoint, with his arms 

encircling her chest. She felt the knife "nick" her. 

 The next thing Doe remembered was "being on the passenger side" of 

appellant's car while he was on the driver's side "throwing up." He again said he did not 

want to go to prison. He offered to hand his knife to Doe if she would get in his car. She 

accepted it and entered the car. Shortly thereafter, she returned the knife to appellant. 

 Appellant drove from Chilli Hill to his father's house, where he was living. 

He showered with Doe and they went to bed. The next day, she awoke with appellant on 

top of her. They had intercourse. Before trial, Doe told an investigator she had sex with 

appellant because she feared she would not be safe if she refused. At trial, she testified 

their sex was consensual. 

 Doe and appellant snuck away from his father's house in the afternoon on 

November 1, in his father's car. He drove Doe to her friend's house, where she had left 

her car. He said he was not "ready to part ways," and they decided to go to a motel. He 

left Doe alone at her friend's house, on the front porch, where she would not be seen. 
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While he was gone, Doe used her cell phone to call a friend. She then fell asleep on the 

porch. 

 Appellant returned and took Doe to the Villa Motel in Santa Maria. Doe 

felt pressure in her head, and her body was aching. She and appellant had intercourse at 

the motel. She told investigators that she had sex with him because she feared he would 

become violent again. He would not let Doe leave the motel room. He told her he still 

did not feel like letting her go. She had to promise she would not go to the police before 

he let her leave. 

 On November 2, 2010, when Santa Barbara Sheriff's Department Deputy 

Edward Moss interviewed Doe, her eyes were discolored. She also had several bruises 

and scrapes. Doe told Moss she had sex with appellant because she feared the situation 

would escalate. During a recorded telephone conversation, appellant demanded that Doe 

tell him what she told police. He told her to just say, "[L]ook, dude, I was fucked up. I 

don't remember shit." The recorded telephone conversation was played for the jury. 

Prior Domestic Violence 

 Appellant's former girlfriend, J.L., testified that he visited her apartment in 

March 2009, after they broke up. Appellant tried to kiss J.L. and she told him to stop. 

He became angry, grabbed her iPod and feigned throwing it down. She tried to hold her 

cell phone to prevent his throwing it. They struggled over the phone, until appellant 

managed to grab, throw and damage it. During the struggle, appellant bruised J.L.'s 

throat and eyes. 

DISCUSSION 

Ineffective Assistance of Counsel 

 Appellant contends he was denied the effective assistance of counsel 

because trial counsel failed to request bifurcation of the section 667.5, subdivision (b) 

prior prison allegation proceedings. We disagree. 

 "The burden of proving ineffective assistance of counsel is on the 

defendant. [Citation.]" (People v. Babbitt (1988) 45 Cal.3d 660, 707.) "First, the 

defendant must show that counsel's performance was deficient. . . . Second, the defendant 
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must show that the deficient performance prejudiced the defense." (Strickland v. 

Washington (1984) 466 U.S. 668, 687.) 

 Anticipating that the jury would learn of appellant's prison priors anyway 

when Doe testified about "statements that [appellant] made while they were up on either 

Chilli Hill or Graciosa," trial counsel made a tactical decision not to request bifurcation. 

Counsel referred to the convictions in his opening statement to the jury in an apparent 

attempt to blunt the negative impact of the prison priors. Tactical errors are not generally 

grounds for reversal. (People v. Maury (2003) 30 Cal.4th 342, 389.) Moreover, 

appellant has failed to "show that there is a reasonable probability that, but for counsel's" 

claimed incompetence, "the result of the proceeding would have been different." 

(Strickland v. Washington, supra, 466 U.S. at p. 694.) He argues counsel's failure to 

request bifurcation of the prior prison proceedings was prejudicial, particularly with 

respect to the rape because the evidence of that crime was weak, and it was harmful for 

the jury to consider evidence of his convictions, parole violations and imprisonment. The 

state prison materials that were submitted to the jury show appellant was convicted of 

second degree commercial burglary and grand theft, and returned to prison several times 

for parole violations. However, they do not state or suggest he was ever convicted of, or 

charged with, forcible rape, or any rape, or any violent sex offense. It is not reasonably 

probable that the outcome of appellant's trial would have been different if counsel had 

requested bifurcation of the prior prison allegation proceedings. 

Unanimity Instruction 

 Appellant was charged in count 8 with kidnapping for the purpose of rape. 

(§ 209, subd. (b)(1).) The jury, however, convicted him of the lesser included offense of 

false imprisonment. Appellant contends the trial court erred in failing to give jurors a 

unanimity instruction concerning count 8 because there was evidence of multiple acts, 

any one of which a juror could have used as the basis for his conviction for misdemeanor 

false imprisonment. He is correct. 

 The California Constitution guarantees a criminal defendant the right to a 

unanimous jury verdict. (People v. Jones (1990) 51 Cal.3d 294, 321; Cal. Const., art. I, 
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§ 16.) In order to find a defendant guilty of a particular crime, the jurors must 

unanimously agree that the defendant committed the same specific act constituting the 

crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) If the prosecution presents 

evidence of several acts, each of which could constitute a separate offense, a unanimity 

instruction is generally required, unless the prosecution elects one of the acts as the basis 

for the charged offense. (People v. Benavides (2005) 35 Cal.4th 69, 101; People v. 

Melhado (1998) 60 Cal.App.4th 1529, 1534 (Melhado).) No instruction is required 

"when the acts are so closely connected that they form part of one and the same 

transaction." (People v. Avina (1993) 14 Cal.App.4th 1303, 1309.) 

 When a unanimity instruction is required, the court has a sua sponte 

obligation to give it. (People v. Riel (2000) 22 Cal.4th 1153, 1199; Melhado, supra, 60 

Cal.App.4th at p. 1534.) "'We review de novo a claim that the trial court failed to 

properly instruct the jury on the applicable principles of law. [Citation.]'" (People v. 

Lueth (2012) 206 Cal.App.4th 189, 195.) 

 The prosecutor argued that count 8, which charged appellant with 

kidnapping for the purpose of rape on November 1, 2010, was based on evidence that he 

"transport[ed], mov[ed Doe] from [his] father's house to the porch where no one was 

home and then from there to the Villa Motel." Doe testified that he left her alone for 

about an hour on the porch of her friend's house, with her car and cell phone. Appellant 

thus argues the jury could have based its count 8 false imprisonment verdict on one of 

various acts he committed, including taking Doe from his father's house to her friend's 

house, and picking up Doe at her friend's house and driving her to the motel. 

 In People v. Haynes (1998) 61 Cal.App.4th 1282, the defendant helped rob 

a victim of cash in a parking lot, then followed the victim for several blocks and accosted 

him again to take more cash. (Id. at pp. 1286, 1294-1296.) The Haynes court concluded 

no unanimity instruction was required because the defendant's acts were part of a single 

transaction. The acts had occurred "just minutes and blocks apart and involved the same 

property[;]" and "were successive, compounding" acts with "a single objective of getting 

all the victim's cash." (Id. at p. 1296.) In contrast, the prosecution below relied on 
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multiple acts, which were not closely connected in time. Some of the acts preceded a 

temporal break of approximately one hour, when appellant left Doe alone. During that 

time, he left her with access to her cell phone and car, which did not "compound" his 

earlier conduct. (Ibid.) Other acts upon which the jury may have based its false 

imprisonment verdict occurred after that temporal break. The prosecution did not elect a 

specific act upon which it based the count 8 charge. Absent that election, the trial court 

was required to instruct the jury that it must unanimously agree on the act underlying its 

count 8 verdict. As the record stands, it is unclear that "each juror agreed on the 

particular criminal act that formed the basis for the [count 8] verdict." (Melhado, supra, 

60 Cal.App.4th at pp. 1535, 1536 [unanimity instruction required where there was 

evidence of multiple threats upon which a juror based the criminal threat conviction].) 

We will reverse the misdemeanor false imprisonment. 

Section 654 Claims 

 Appellant claims the trial court violated section 654 by imposing sentence 

for both kidnapping (count 1) and the counts 2, 3 and 4 corporal injury crimes, and by 

imposing sentence for both the count 4 corporal injury crime and the count 5 charge of 

witness dissuasion. We disagree. 

 Section 654 prohibits the imposition of multiple punishments for the same 

act or omission; it does not bar multiple punishments for multiple violations of the same 

statute or for acts committed incident to multiple criminal objectives. (People v. Correa

(2012) 54 Cal.4th 331, 340-341; People v. Rodriguez (2009) 47 Cal.4th 501, 507.) 

"[T]he purpose of section 654 is to ensure that a defendant's punishment will be 

commensurate with his culpability." (Correa, at p. 341.) "Whether section 654 applies 

in a given case is a question of fact for the trial court, which is vested with broad latitude 

in making its determination. [Citations.] Its findings will not be reversed on appeal if 

there is any substantial evidence to support them. [Citations.] We review the trial court's 

determination in the light most favorable to the respondent and presume the existence of 
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every fact the court could reasonably deduce from the evidence. [Citation.]" (People v. 

Jones (2002) 103 Cal.App.4th 1139, 1143.) 

 "[W]hen [a] defendant pauses and, having the option to land another blow 

or to break off the attack, chooses the former course of action, his culpability increases 

and his intent, though the same in kind, can be considered separate and distinct . . . ." 

(People v. Trotter (1992) 7 Cal.App.4th 363, 368, fn. 4.) He should not "'. . . be rewarded 

where, instead of taking advantage of an opportunity to walk away from the victim, he 

voluntarily resumed his . . . assaultive behavior.' [Citation.]" (Id. at p. 368.) 

 Appellant claims that his October 31, and November 1, 2010, kidnapping 

and corporal injury crimes shared a single, common objective of beating "the shit" out of 

Doe, and constituted an "indivisible" course of conduct for purposes of section 654. The 

record belies his claim. There were multiple pauses in the violent acts appellant 

committed at three distinct locations during and after the kidnapping. Substantial 

evidence supports the trial court's implied findings that appellant had the opportunity to 

reflect on his actions and decide whether to continue his assaultive behavior between the 

assaults, and each crime was a discreet act with a distinct intent. 

 Appellant makes the related claim that the trial court violated section 654 

by sentencing him for both the count 4 corporal injury and the count 5 witness dissuasion, 

and he argues those crimes shared the same intent and objective. In his supplemental 

brief, he argues that because those crimes shared a common factual basis, use of a knife, 

section 654 bars separate punishments for the two crimes. Again, we disagree. 

 Even if the corporal injury and dissuasion involved the use of one knife, 

that factor does not establish that appellant had a single intent and objective in 

committing the two crimes. If the "defendant harbored 'multiple criminal objectives,' 

which were independent of and not merely incidental to each other, he may be punished 

for each statutory violation committed in pursuit of each objective, 'even though the 

violations shared common acts or were parts of an otherwise indivisible course of 

conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335, italics added.) 
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 Unlike the corporal injury offense, witness dissuasion by force or threat 

does not require that a defendant inflict physical injury upon the victim. (§ 136.1, subds. 

(b)(1), (c).) The jury did not necessarily find that appellant used the knife in order to 

convict him of witness dissuasion. The prosecutor's argument concerning count 5 

included multiple bases upon which the jury could have found appellant used force to 

dissuade Doe from reporting the crime: "So the defendant is beating, strangling, handling 

a knife to prevent Jane Doe from reporting. This is Count 5." Substantial evidence 

supports the court's implied finding that appellant's intent to dissuade Doe from reporting 

the crimes (e.g., to avoid prison) was separate from his intent to injure her. 

DISPOSITION 

 The misdemeanor false imprisonment conviction is reversed. In all other 

respects, the judgment is affirmed. 

 NOT TO BE PUBLISHED. 

 PERREN, J. 

We concur: 

 

 GILBERT, P. J. 

 

 YEGAN, J. 
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Kay Kuns, Judge 

Superior Court County of Santa Barbara 

______________________________ 

 Susan Pochter Stone, 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, Senior Assistant Attorney General, Paul M. 

Roadarmel, Jr., Supervising Deputy Attorney General, Stephanie A. Miyoshi, David F. 

Glassman, Deputy Attorneys General, for Plaintiff and Respondent.