1

Filed 8/28/13 P. v. Lu CA1/2 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

TIAN YU LU, 

 Defendant and Appellant. 

 A135535 

 (Alameda County 

 Super. Ct. No. C164460) 

I. INTRODUCTION 

Alfredo Bustamante, a U.S. Postal Service Supervisor in San Francisco, was badly 

injured near his home in Albany, Alameda County, when hit by a pickup truck being 

driven by appellant, one of the postal workers Bustamante had formerly supervised. As a 

consequence of that event, the Alameda County District Attorney’s office charged 

appellant with two counts, i.e., willful and premeditated attempted murder (Pen. Code, 

§§ 187, subd. (a); 664, subd. (a))1

 and assault with a deadly weapon (§ 245, subd. (a)(1)). 

Both counts included an allegation that appellant intended to inflict great bodily injury. 

(§§ 1203.075; 12022.7, subd. (a).) After a several-week trial, the jury found appellant not 

guilty of the first count, but guilty of the second. It was unable to reach a verdict on the 

great bodily injury allegation. Appellant appeals, claiming that the trial court erred in 

failing to give the jury a unanimity instruction as to which act of appellant constituted the 

assault with a deadly weapon. We reject appellant’s argument and affirm his conviction. 

 1

 All subsequent statutory references are to the Penal Code. 
2

II. FACTUAL AND PROCEDURAL BACKGROUND 

 Appellant was, as noted above, a former U.S. postal service worker who had 

worked under the supervision of Bustamante. In 2009, Bustamante terminated appellant 

due to the latter’s failure to improve his performance after a two-week suspension. Prior 

to that suspension, appellant had also been suspended from his position by other 

supervisors because of his job performance. After his termination, appellant remained on 

the job for about six weeks until an arbitrator upheld that termination. 

 Bustamante lived at 925 Pierce Street in Albany. Appellant lived in San 

Francisco. In March 2010, appellant contacted a man named Eduardo Lopez who had 

advertised a 1993 Ford Ranger pickup truck for sale. When appellant came to see that 

vehicle, he did not, per the testimony of Lopez, take it for a test drive, or even check the 

operation of its engine. Appellant told Lopez the truck was being purchased for 

operation by an employee of appellant’s, allegedly an African- American man according 

to an identification appellant showed Lopez. Appellant provided Lopez with the name of 

the alleged purchaser, Herbert Gilbert Edward, a person who resided in a South San 

Francisco residential hotel managed by appellant. However, per an “acting assistant 

manager” of that hotel, Edward “wasn’t quite lucid” most of the time and had never been 

seen driving a car. 

 On March 28, 2010, formal ownership of the Ford pickup was transferred to 

Edward. 

 At around 6:00 a.m. on Saturday, May 1, 2010, Bustamante left his home on 

Pierce Street in Albany to get into his car and go to work in San Francisco. His car, a 

two-door 1999 black Acura, was parked on the street in front of his house, right behind a 

black truck. As he did so, he heard “an engine running . . . towards the end of the block” 

but did not pay much attention, assuming it was just a person “trying to warm up their 

car.” Bustamante then walked around the back of his car and used his key to open its 

door. As he did so, his car was struck by a “light-colored truck,” specifically a pick-up 

truck which was “going very fast” and “straight at” him. Bustamante’s right arm was in 

the driver’s side door of his car when the pickup truck hit the car, resulting in the car door 
3

slamming into that arm, fracturing it three times, and causing him “really extreme pain.” 

Bustamante was, however, able to see that the driver of the pickup truck was an “Asian 

male.” 

 About two or three seconds later, Bustamante saw the truck pull back “maybe 

three, four feet or so, and I could hear that he was changing gears.” So, with his left arm 

he opened the door and pulled his “arm out, and I just ran from the vehicle” towards the 

sidewalk and his garage, and then fell. At the same time, the pickup truck went 

backwards three or four feet, changed gears again, and came forward, this time hitting 

Bustamante’s neighbor’s car, a blue Nissan, which had been parked behind the Acura. 

The pickup truck then drove away, slowly, and apparently with a flat tire, and then turned 

off of Pierce Street. A neighbor then came out to help Bustamante, followed in a few 

minutes by the Alameda police and an ambulance. 

 One of the officers went looking for a vehicle matching the description of the 

pickup truck, and located such a vehicle, with appellant in it, in a parking lot at the 

Golden Gate Fields race track. The truck had a flat tire and a damaged left front fender. 

The officer advised his dispatch desk that he may have located the suspect vehicle. 

Appellant told that officer that he had gotten a flat tire on the freeway and did not need 

assistance; he told the same officer that, first, he was on his way to work when he got the 

flat tire and, later, that he was on his way to a job interview in Berkeley when that 

happened. He also told that officer that the damage to the front of his truck had happened 

“two to three weeks prior.” 

 Meanwhile, a second officer came to the Pierce Street location and found both the 

damaged Acura and blue Nissan, plus tire marks on the street. That officer followed a 

trail of blood from the rear of the Acura which led him to Bustamante sitting on his porch 

suffering a badly fractured arm. An ambulance then arrived, Bustamante’s arm was 

stabilized by a paramedic, and he was taken to Golden Gate Fields for an “in-field 

showup.” There, Bustamante identified both the truck as the one that had hit his car 

when his arm was inside its door, and also identified appellant as the driver of that truck. 

The police then arrested appellant. 
4

 After his arrest, the police searched both the pickup truck and appellant’s home. 

In the truck they found a flashlight, night-vision goggles and binoculars. The search of 

appellant’s home produced an email with an estimate for the repair of a fender on a Ford 

Ranger pickup truck, a handwritten note that stated “Retaliate. Make Reprisals,” and on 

the bottom of which was a note reading “F250,” which is a model of a Ford pickup truck. 

A search of appellant’s computer produced a Google Maps search for 925 Pierce Street 

and other addresses in Albany. 

 The victim, Bustamante, was found to have three fractures in his right arm. That 

arm had to remain in either a cast, sling, or a wrap for several months. His repaired arm 

also had metal plates in it, resulting in additional pain in cold weather. 

 One of the investigating officers testified regarding several of the skid marks 

found at the scene of the collisions on Pierce Street. He testified that two of those skid 

marks, i.e., numbers one and five, indicated that the pickup truck had accelerated rapidly 

both when going in reverse and then when going forward again, and that both of those 

skid marks were fresh. He also testified that he did not find any sign of brake marks at 

the scene. A bit further away on Pierce Street, that officer found a mark apparently by a 

flat tire, i.e., similar to “a dragging mark.” 

 Appellant testified in his own defense. He stated that he had emigrated from 

China in 1986, began working as a USPS letter carrier in 1994, and came under 

Bustamante’s supervision in 2008. The latter suspended him the following year for, 

allegedly, not following directions. After that suspension was over, appellant took 

photographs of Bustamante sleeping in his car; he showed those photographs to a coworker, who apparently then showed them to Bustamante. About a month after appellant 

saw Bustamante with a copy of one of the photos, appellant was terminated by 

Bustamante because, appellant believed, of those photographs. As a result of his 

termination, appellant suffered what he termed “may mien” or “lost face.” 

 According to his testimony, after his termination, and while driving to the East 

Bay on the Bay Bridge, appellant saw Bustamante’s car going in the same direction and 

followed it to the latter’s home in Albany. He then devised a plan to restore his “lost 
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face,” i.e., to inflict damage on Bustamante’s car. He denied ever planning to injure 

Bustamante physically, however. 

 Per his testimony, appellant then looked for and bought the pickup truck he later 

used; he also placed a bumper guard on the truck. Then, two days before May 1, 2010, 

appellant drove to Bustamante’s Albany neighborhood to locate the latter’s Acura and, 

using a flashlight “in the early morning hours,” verified that the Acura was parked on 

Pierce Street. Thus, he testified, the flashlight, binoculars and night-vision glasses were 

already in the truck he had recently purchased, and had been for “at least two weeks” 

before the May 1 incident. 

 On May 1, 2010, appellant continued, he planned to be at Bustamante’s home at 

5:30 a.m. to inflict the planned damage on the latter’s car, but he was delayed when San 

Francisco police stopped him and asked him what he was doing when he was walking to 

the pickup truck; thus, it was almost 6 a.m. when he arrive on Pierce Street in Albany. 

He momentarily “stopped” (but later denied he had “parked”) to make sure “nobody was 

around” and then “I just speed [sic] up . . . [and] try to use my front bumper to hit the 

side of the car . . . .” At the last minute, however, appellant saw “somebody in front of 

the door [to the car]” and put on the brakes and tried to steer the truck away from the 

person, but “my truck hit the car” and Bustamante ended up “on my hood” briefly. 

Appellant then became, he said, very scared and tried to leave; he backed up the truck 

and then moved it forward, but didn’t turn it far enough and thus hit the Nissan as he tried 

to leave the scene. According to appellant, he was never trying to hurt or kill 

Bustamante. 

 Appellant’s counsel then presented a collision reconstruction expert, Michael 

Mahoney. Mahoney characterized the damage to the Acura as “sideswipe-related” rather 

something caused by a “head-on” or “broadside” type of collision. He also opined that, if 

the truck had hit the Acura while moving at 10 mile an hour without braking, the injuries 

to Bustamante and the damage to the Acura would have been significantly worse. He 

thus opined that the brakes on the truck had been applied and that it was not possible to 

tell from the skid marks whether they had been made by braking or acceleration. Finally, 
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he testified that he had “no idea” as to how skid mark number five had been made, and 

opined that it did not derive from this incident. 

 In rebuttal, the prosecution called its own collision reconstruction expert, Robert 

Snook, who opined that all the tire marks at the pertinent point on the street were 

“accelerations scuffs,” i.e., made while the vehicle was trying to accelerate forward 

faster, and none were caused by braking. More specifically, he opined that skid mark 

numbers one and five were both “acceleration” marks or “scuffs.” He also opined that 

the evidence from these several accelerations marks demonstrated that the driver of the 

vehicle that made those marks had made no effort to either ease off the accelerator or 

attempt to turn the vehicle. He also testified that he had found no brake marks at the 

scene. 

 From all of this evidence, Snook opined that the vehicle had first struck the Acura 

from its front to its rear, and then scraped it as it backed up, and then accelerated forward 

again striking both the Acura a second time and then “slams head-on into the Nissan 

Rogue.” The vehicle was then reversed into the middle of the street and then “flees the 

scene southbound on Pierce . . . .” 

 During the afternoon of the fourth day of its deliberation, i.e., February 2, 2012,2

the jury sent the court three questions; two of them concerned only the issue of the great 

bodily injury (GBI) alleged enhancement, while the first asked the court to confirm that 

the two counts charged and the GBI issue were all “separate and distinct determinations 

by the jury.” The court, with the approval of both counsel, so confirmed to the jury 30 

minutes later. A short time later, the jury advised the court that it had reached a 

unanimous verdict regarding the two charged counts, but could not agree regarding the 

GBI allegation, and stated that they probably “will not be able to reach a unanimous 

decision” regarding that allegation. 

 The trial court then recalled the jury and conducted a brief dialogue with the 

foreperson, who confirmed that the jury was not in agreement regarding the GBI 

 2

 All further dates noted are in 2012. 
7

allegation “as to both counts” but also confirmed “that it is in your view only necessary to 

do so as to one count.” The foreperson also indicated that the jury was split 6-1-5 on the 

“unresolved issue,” i.e., the GBI allegation. 

 After the jury had been sent back for further deliberations, counsel and the court 

engaged in some discussion; the prosecutor commented that the jury “may be considering 

the first pass and the second pass as separate acts.” Defense counsel agreed, but added 

“we don’t know for sure.” The prosecutor then stated that its case had been presented 

“like it’s all one continuous act . . . . And maybe they need some clarity on that.” 

Defense counsel started to make a response, but then said that “I don’t think we need to 

put this on the record.” 

 The jury then returned and the foreperson advised the court that they needed 

clarification as to the third question raised earlier, i.e., when the GBI occurred. The trial 

court reminded the jury that it had instructed it with CALCRIM No. 3160 regarding that 

issue; the foreperson responded that the jury found that instruction to contain “a little bit 

of ambiguity.” There followed an extended discussion between the trial court and the 

foreperson regarding the application of the GBI enhancement, after which the foreperson 

stated that, based on the court’s explanation, “I believe we will not be able to reach a 

unanimous decision on that allegation.” 

 A short time later, the jury returned its verdict. It acquitted appellant on count 

one, the charge of attempted murder, but convicted him on the second count, assault with 

a deadly weapon. It also advised the court that it could not reach a unanimous verdict on 

the GBI allegation as to that count. 

 On March 5, appellant filed a motion for a new trial, asserting that the jury was not 

unanimous regarding the act that constituted the assault. The following month, his 

counsel amended that motion, arguing that (1) the jury was apparently not unanimous 

regarding the act that constituted the assault and (2) the verdict was contrary to the law 

and the evidence. On April 17, the prosecution filed its opposition to the amended new 

trial motion. 
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 On May 4, the trial court denied appellant’s motion for a new trial, denied him 

probation, and sentenced him to the upper term of four years in state prison. 

 On May 23, appellant filed a timely notice of appeal. 

III. DISCUSSION 

 Appellant’s sole argument in his briefs to us is that the trial court erred in not 

giving a unanimity instruction (i.e., CALCRIM No. 3500) because the jury “may not 

have been unanimous as to the conduct constituting assault.” We reject this argument for 

several reasons. 

 First of all, appellant never requested such an instruction from the trial court. 

Even more significantly, his trial counsel never contended in the trial court, even in the 

slightest, that the charges against appellant and the evidence produced at trial showed two 

separate and distinct acts that might have constituted the sole charge of which appellant 

was found guilty, i.e., assault with a deadly weapon. Indeed, when the prosecutor raised 

the issue of whether the court should clarify to the jury that what was involved in the 

case—or at least the prosecution’s theory as to what was involved—was that “it’s all one 

continuous act . . . one single event [and] maybe they need some clarification on that,” 

trial defense counsel was not at all disposed to discuss that issue on the record. 

 The same is true regarding that counsel’s argument to the jury. As to the assault 

count, the one charge on which appellant was found guilty, his counsel stressed to the 

jury, and stressed only, that the issue was the “mental state” of appellant, i.e., did he 

know that Bustamante was going to be near his car when he hit it. At no point in his 

argument regarding the assault count, did defense counsel make any reference to the fact 

that the truck appellant was driving made two “passes” at Bustamante’s Acura. Indeed, 

in his closing argument to the jury, that counsel noted only very briefly that, per 

Bustamante’s testimony, appellant had “backed up” his truck, but he never alluded to any 

sort of “second pass” allegedly made at Bustamante or his Acura by appellant. 

 Clearly, the idea that there might be a defense based on the concept of two 

separate and distinct assaults by appellant in his pick-up truck did not arise until after the 

trial and his conviction. Even then, in his two motions for a new trial, appellant never 
9

argued the need for a unanimity instruction, but only that the jury’s guilty verdict on the 

assault count was inconsistent with its inability to agree regarding the GBI allegation and, 

therefore, its guilty verdict on the assault count may not, in fact, have been unanimous. 

Only in his appeal to this court has appellant argued that the trial court erred in not giving 

a unanimity instruction. 

 Second, nothing in the dialogue between the court and the jury’s foreperson was 

the subject matter of whether there were or may have been two separate and distinct 

assaults by appellant on Bustamante. Rather, the dialogue quoted in appellant’s briefs to 

us concerned, and concerned only, the issue of the GBI alleged enhancement. Thus, the 

jury’s three written questions to the court principally concerned the GBI allegation as did 

its later note to the court stating that it was “unable to reach unanimous decision as to the 

great bodily injury clause.” A few minutes later, the jury’s foreperson verbally 

confirmed to the court that the jury was unable to reach a unanimous resolution of the 

GBI allegation “as to both counts” 

 After the foreperson indicated that, on one issue, the jury was divided 6-1-5, there 

ensued the extended dialogue between the court and the jury’s foreperson regarding the 

jury’s belief that the GBI instruction the court had provided (CALCRIM No. 3160) had 

some “ambiguity” in it, i.e., “whether GBI has to happen or can GBI happen at any point 

in the incident.” And the ensuring statements of the court to the jury and its foreperson 

concerned, and concerned only, the application of the GBI allegation. After those 

discussions, the foreperson advised the court that he or she believed “we will not be able 

to reach a unanimous decision on that allegation,” a conclusion verified a few minutes 

later when it returned its verdicts which, again, unanimously acquitted appellant on the 

first count, attempted murder, and convicted him of assault with a deadly weapon. At no 

point during the court’s discussion with the foreperson did defense counsel ask for any 

sidebar conversations with the court (although the prosecutor did), or raise any questions 

about any aspect of the court’s discussion with the jury about the GBI allegation. 

 In sum on this point, at no time before or during the jury deliberations did defense 

counsel argue, or even suggest, that the jury’s problems in reaching its verdict may have 
10

arisen because there were, or may have been, two separate and distinct “assaults” by 

appellant on Bustamante. More importantly, at no time was anything remotely 

resembling a unanimity instruction on the second count (the assault count) requested or 

even suggested and, when the issue of “all one continuous act” was raised by the 

prosecutor, defense counsel had no reply or reaction to offer for the record. 

 Third and probably most important, it is very clear from the record that what was 

involved here was, indeed, one continuous act, even though it possibly consisted of two 

“passes” by appellant’s pickup truck at Bustamante’s Acura. Put another way, it was 

almost exactly the same as an assailant throwing two knives at a victim, the first one 

hitting the victim in his arm and the second one “three or four seconds later” coming 

close to the victim but hitting someplace else (e.g., a blue Nissan parked close by).3

 The law is clear that where there is one continuous course of conduct conducted 

by a defendant, a unanimity instruction is not required. Our Supreme Court has made 

this clear in several cases. Thus, in People v. Riel (2000) 22 Cal.4th 1153, 1199, that 

court held that, in a case involving two robberies, when there was (1) “no danger some 

jurors would find defendant committed” one robbery and not the other and (2) “[t]he 

parties never distinguished between the two acts,” and (3) the “defense was the same as 

to both: defendant was asleep in the backseat of the car and did not participate in any act 

of robbery,” there was no need to give a unanimity instruction. 

 In People v. Russo (2001) 25 Cal.4th 1124, the defendant was convicted of 

conspiring to murder his wife; on appeal, he argued that the trial court had erred in not 

instructing the jury that it had to agree on the specific overt act that supported the 

 3

 In his reply brief to us, appellant notes several times that, in his closing argument 

to the jury, the prosecutor argued: “It was done twice. Huge. Huge when it comes to 

intent. A lot of people may say ‘Oh, first time, just an accident.’ Okay, he just happened 

to be there. I’ll buy that. Twice? Twice is an intent to kill.” But the law is clear that 

such an argument does not mean that there were, in fact, two separate criminal assaults 

charged against appellant or that the evidence introduced showed two separate and 

distinct assaults. In fact, the evidence demonstrated an assault on Bustamante, perhaps

performed twice a few seconds apart, but perhaps only once. 
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conspiracy. Our Supreme Court disagreed, stating: “The key to deciding whether to give 

the unanimity instruction lies in considering its purpose. The jury must agree on a 

‘particular crime’ [citation]; it would be unacceptable if some jurors believed the 

defendant guilty of one crime and other jurors believed her guilty of another. But 

unanimity as to exactly how the crime was committed is not required. Thus, the 

unanimity instruction is appropriate ‘when conviction on a single count could be based 

on two or more discrete criminal events,’ but not ‘where multiple theories or acts may 

form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding 

whether to give the instruction, the trial court must ask whether (1) there is a risk the jury 

may divide on two discrete crimes and not agree on any particular crime, or (2) the 

evidence merely presents the possibility the jury may divide, or be uncertain, as to the 

exact way the defendant is guilty of a single discrete crime. In the first situation, but not 

the second, it should give the unanimity instruction.” (Id. at pp. 1134-1135.) 

 Similarly, in People v. Maury (2003) 30 Cal.4th 342, a medical examiner had 

testified that the victim’s death “was caused by strangulation, a blow to the head, or a 

combination of both injuries.” (Id. at p. 422.) Based on this, the appellant argued that the 

trial court should have given a unanimity instruction regarding “the act or acts that caused 

her death.” (Ibid.) The court rejected this argument, holding: “A requirement of jury 

unanimity typically applies to acts that could have been charged as separate offenses. 

[Citations.] A unanimity instruction is required only if the jurors could otherwise 

disagree which act a defendant committed and yet convict him of the crime charged. 

[Citation.] Here, the evidence did not reflect multiple independent acts, any of which 

could have led to [the victim’s] death. . . . Thus, the two theories were based on a 

continuous course of conduct, whose acts were so closely connected in time as to form 

part of one transaction. [Citations.] (Id. at pp. 422-423, italics added; see also People v. 

Sapp (2003) 31 Cal.4th 240, 283-285 [no unanimity instruction required in case involving 

murder with a special circumstance allegation of financial gain, where the evidence 

showed, and the prosecutor “wove . . . together,” the two ways the defendant achieved 

financial gain via the murder of the victim.].) 
12

 To sum up our Supreme Court’s holdings on this issue, in People v. Crandell 

(1988) 46 Cal.3d 833, 875, overruled on other grounds in People v. Crayton (2002) 28 

Cal.4th 346, 365, it said: “The unanimity instruction is not required when the acts are so 

closely connected in time as to form part of one transaction.” (See also People v. 

Jennings (2010) 50 Cal.4th 616, 679.) 

 Many Court of Appeal cases have applied this principle, including a recent 

decision strongly relied upon by respondent Attorney General, People v. Bui (2011) 192 

Cal.App.4th 1002 (Bui).4

 In that case, the defendant was one of two men involved in an 

“Oakland home invasion robbery” (id. at p. 1008) during which he was armed with a 

loaded gun, which was fired four times in “[l]ess than 10 [seconds]” (id. at p. 1006) 

resulting in wounds to both the arm and abdomen of the victim, a man named Huynh. 

(Ibid.) After being convicted by a jury of attempted murder, the defendant argued to our 

colleagues in Division Four that “the trial court erred in failing to require the prosecution 

to elect which shot it relied on for the attempted murder charge and by failing to give a 

unanimity instruction.” That court rejected this argument, stating: “ ‘In a criminal case, 

a jury verdict must be unanimous. [Citations.] . . . 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.]’ [Citation.] However, ‘[t]he unanimity instruction is not 

required when the acts are so closely connected in time as to form part of one transaction. 

[Citations.] This branch of the “continuous conduct” exception [citation] applies if the 

defendant tenders the same defense or defenses to each act and if there is no reasonable 

basis for the jury to distinguish between them. [Citations.]’ [Citations.] This exception 

‘ “is meant to apply not to all crimes occurring during a single transaction but only to 

 4

 Despite respondent’s strong reliance on the holding of Bui, that case is never 

discussed or even cited in either of appellant’s briefs to us. Which is even more 

significant in view of both (1) its factual similarity to the instant case and (2) our 

Supreme Court’s denial of review in Bui. (See 192 Cal.App.4th at p. 1017.) 
13

those ‘where the acts testified to are so closely related in time and place that the jurors 

reasonably must either accept or reject the victim’s testimony in toto.’ [Citation.]” 

[Citation.]’ [Citation.] [¶] The evidence showed that all of the gunshots were part of one 

continuous course of conduct. Huynh suffered two gunshot wounds, and a shot appeared 

to have made a hole in the home’s window. Huynh testified the three shots he heard were 

fired within seconds of each other. There was no evidence from which the jury could 

conclude defendant fired one shot but not the other. [Citation.] On this record, the shots 

formed one transaction, and the jury must either have accepted or rejected Huynh’s 

testimony in toto. In the circumstances, the prosecutor was not required to elect which 

among the shots she relied on for the attempted murder charge, and the trial court was not 

required to give the jury a unanimity instruction.” (Bui, supra, 192 Cal.App.4th at pp. 

1010-1011.) 

 Many other published decisions hold to the same effect. Thus, in People v. 

Napoles (2002) 104 Cal.App.4th 108, 114-117, our colleagues in Division Five of this 

court ruled that no unanimity instruction was required in the trial of a mother and father 

convicted of felony child abuse for mistreatment of their child over a several-month 

period of time; in so ruling, the court stated: “Even when the prosecution proves more 

unlawful acts than were charged, no unanimity instruction is required where the acts 

proved constitute a continuous course of conduct. [Citation.] ‘ “This exception arises in 

two contexts. The first is when the acts are so closely connected that they form part of 

one and the same transaction, and thus one offense.” ’ ” (Id. at p. 115.) 

 In People v. Sutherland (1993) 17 Cal.App.4th 602, a decision of this court, the 

defendant was convicted of several acts of forgery and, on appeal, claimed that a 

unanimity instruction was required because, as to the counts on which she was convicted, 

it was possible that the jury found her guilty either as being the forger or as being an aider 

and abettor. We rejected that argument, holding that “[U]nder established California 

law, no unanimity instruction is required to prevent a less than unanimous verdict where 

the evidence independently proves acts which support defendant’s liability either as a 
14

principal or as and aider and abettor.” (Id. at p. 617; see also to the same general effect, 

People v. Lueth (2012) 206 Cal.App.4th 189, 195-199.) 

 In his briefs to us, appellant cites several cases where the appellate court found 

error in the failure to give the jury a unanimity instruction, but all of them are easily 

distinguishable. Thus, in People v. Melhado (1998) 60 Cal.App.4th 1529 (Melhado), a 

case strongly relied on by appellant, the defendant was convicted of making a threat to 

commit a crime of violence in violation of section 422. However, the evidence before the 

jury consisted of two separate and distinct threats made by the defendant to mechanics 

who had repaired the brakes on his car, but were still holding it until they were paid. One 

threat, in which the defendant mentioned getting and using a grenade in retaliation, 

occurred at 9 a.m., and another, in which the defendant both repeated his threat and 

showed what appeared to be a grenade, occurred at 11 a.m. the same day. The appellate 

court reversed the defendant’s conviction because, it held, the evidence “established that 

appellant committed two acts of making terrorist threats, each of which could have been 

charged as a separate offense, yet the matter went to the jury on only one such offense. 

Because the prosecution’s election was never clearly communicated to the jury, the trial 

court should have instructed on unanimity. To hold otherwise would leave open the door 

to allowing a prosecutor’s artful argument to replace careful instruction.” (Melhado, 

supra, 60 Cal.App.4th at p. 1539.) 

 Appellant argues that this holding applies here, stating: “Here, there were two acts 

of assault alleged by the prosecutor, which could have been charged as separate offenses. 

The first occurred during the first pass, resulting in injury to Mr. Bustamante. The 

second occurred during the second pass, which missed Mr. Bustamante and resulted in no 

injury to him. Thus, a unanimity instruction was required . . . . [under the holding of 

Melhado.]” 

 We disagree. In the first place, the prosecution never “alleged” two separate and 

distinct acts of assault against appellant and we doubt that it properly could have bearing 

in mind (1) the extremely short time between the two “passes” and (2) the obviously open 

question of whether the second “pass” by the pickup truck was aiming for Bustamante 
15

and/or his Acura or was an unintended sideswipe of the Nissan. Further, as noted above 

(see fn. 3, ante), the prosecutor’s closing argument that “[i]t was done twice” does not 

mean that, under the law, the prosecution either was or should have been charging two 

separate and distinct criminal assaults against appellant.5

 

 Finally on this point, the argument that a unanimity instruction “was required” 

under the facts of this case means that when a defendant makes two assaults on a victim 

within two or three seconds, the first of which hits and breaks the victim’s arm and the 

second of which damages neighboring property, he must be charged with two separate 

and distinct crimes of assault with a deadly weapon under section 245, subdivision (a)(1). 

Such is totally contrary to the law, as Bui and the other authority discussed above make 

clear. 

 The only other decisions appellant specifically relies upon in support of his 

argument that a unanimity instruction was required here are People v. Davis (2005) 36 

Cal.4th 510 (Davis) and People v. Melendez (1990) 224 Cal.App.3d 1420 (Melendez), 

overruled on another point in People v. Majors (1998) 18 Cal.4th 385, 408. Davis 

involved an appeal from two first degree murder and two robbery convictions of the 

defendant; the murders and robberies occurred over a three-hour period in Westwood, 

Los Angeles County. One of the robberies was the taking of two rings off the fingers of 

one of the murder victims and the other was the taking of a car from her and the other 

murder victim. (Davis, supra, 36 Cal.4th at pp. 519 & 561.) In reversing the first-noted 

conviction the court explained: “On the facts here, we conclude that the defendant was 

entitled to a unanimity instruction. The evidence disclosed two distinct takings: the 

taking of Harris’s car from Boyd and Harris, and the taking of Boyd’s rings from her 

person. Moreover, the prosecutor argued that the jury could rely on either theory to 

convict defendant of the robbery of Boyd.” (Davis, supra, 36 Cal.4th at p. 561.) The 

court rejected this argument, stating: “We are not persuaded. In each of the cases the 

 5

 As also noted above, defense counsel declined to respond to the prosecutor’s 

suggestion during the jury’s deliberations that perhaps it needed a clarifying instruction 

on the prosecution’s continuous conduct theory. 
16

Attorney General relies on, we concluded that a unanimity instruction was not required 

(or, even if required, we found no prejudice) either because the defendant offered the 

same defense to both acts constituting the charged crime, so no juror could have believed 

defendant committed one act but disbelieved that he committed the other, or because 

‘there was no evidence . . . from which the jury could have found defendant was guilty 

of’ the crime based on one act but not the other. [Citation.] The same cannot be said 

here. As explained above, the potential defenses to the two acts of robbery were entirely 

different: as to the car, the defense was that Boyd was not legally in possession of it; as to 

the rings, the defense was that its taking constituted only the lesser included crime of 

theft.” (Id. at p. 562.) 

 In Melendez, the defendant and another man were convicted of second degree 

robbery of a Radio Shack store in Bakersfield, a robbery apparently undertaken by both 

of them and one other person. The appellate court reversed the defendant’s conviction 

because of the failure to give a unanimity instruction in view of the several goings and 

comings from the store that was robbed. It stated: “Respondent’s assessment that this 

case falls into the ‘single course of conduct’ exception misses the mark. Robbery is not 

one of those crimes that involves continuous conduct resulting in one specific offense; a 

robbery involving a single taking is not an ongoing crime. Although the acts here 

surrounding and encompassing the robbery were closely related in time and place, many 

of the acts were testified to by different witnesses and occurred at distinguishable places 

and times, such that a juror might believe that defendant committed one or more of the 

acts and also believe that defendant did not participate in one or more of the other acts. 

Thus, it cannot be said there was no reasonable likelihood of juror disagreement as to the 

particular acts. The prosecution’s evidence here was not such that the jury could have 

reasonably only believed or rejected it in toto. . . . [¶] In the instant case, the jurors could 

reasonably have disagreed as to when defendant was involved and how he was involved 

in the robbery.” (Melendez, supra, 224 Cal.App.3d at pp. 1430-1431.) 

 We have no difficulty in concluding that, like Melhado, neither of these cases is 

applicable much less controlling here. For all of these reasons, we reject appellant’s 
17

argument that the trial court erred in failing to give a unanimity instruction regarding the 

assault charge on which appellant was convicted. 

IV. DISPOSITION 

The judgment is affirmed. 

 _________________________ 

 Haerle, J. 

I concur: 

_________________________ 

Richman, J. 
1

Concurring opinion of Kline, P.J. 

 Defense counsel failed to request a unanimity instruction, thereby waiving that 

issue, because appellant never asked the jury to find he committed two separate acts with 

separate defenses. As trial counsel told jurors, “[t]he defense is the mental state. Did Mr. 

Lu know that Mr. Bustamante was going to be there and planned all of this to assault 

him, to assault Mr. Bustamante, or has the prosecution failed to prove that beyond a 

reasonable doubt.” 

 The argument appellant makes on this appeal, that he committed two separate 

acts—which is unsupported by the testimony of his own accident reconstruction expert or 

any other credible evidence—is wholly inconsistent with his position at trial. 

 Neither People v. Melhado (1998) 60 Cal.App.4th 1529, which appellant relies 

upon, nor any other case imposes on a trial judge a sua sponte duty to give a unanimity 

instruction in these circumstances. 

 For the foregoing reasons, I concur in the judgment. 

 ____________________________ 

 Kline, P.J.