Filed 9/17/20 P. v. Qualey CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

I N THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TIMOTHY J AMES QUALEY

,
Defendant and Appellant. B 300220

(Los Angeles County Super. Ct. No. P A 091747 )

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

, Hayden A. Zacky

, Judge. Affirmed

.

G. Martin Velez

, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra , Attorney General, Lance E. Winters, Chief Assistant Attorney General, S usan Sullivan Pithey

, Assistant Attorney General, Steven E. Mercer and David A. Voet

, D eputy Attorney s General, f

or Plaintiff and Respondent. * * * * * *2 INTRODUCTION Timothy James Qualey (defendant) argues that his
conviction for making criminal threats is invalid because he
threatened his victim on two separate occasions and the jury was not given a unanimity in struction. Because the threats were so close in time as to “form part of one transaction,” no unanimity instruction was required. ( People v. Stankewitz (1990) 51 Cal.3d 72, 100 ( Stankewitz ).) We accordingly affirm his conviction.
FACTS AND PROCEDURAL BA CKGROUND
I. Facts In October 2018, defendant and Jamie R. (Jamie) were in a dating relationship that involve d “a lot” of “argu[ing] and fight[ing].” One Sunday evening that October, Jamie was at
home in her condo with a male friend. Defendant called her

,

accus ed her of cheating on him with the friend, and told her, “Bitch, I’m going to come to your house and kill you.” Frightened, Jamie and her friend decided to leave and got into Jamie’s car. As she was driving down the driveway of her condo , defendan t “jump [ ed ] out from behind a bush,” stood in front of her car, and pulled out a knife. While looking Jamie in the eye, defendant said, “I’m going to kill you” and stabbed the hood of the car with a
knife. When defendant pulled the knife from the hood an d started to approach the driver’s side of the car, Jamie hit the gas, bump ed defendant to the ground, and drove to a nearby gas
station.
Jamie recounted these events three times. She called 911 while driving to the gas station, and reported that defen dant had “threatened” her “at [her] ho u se” and “stabbed [her] car with a
knife.” And she spoke with two law enforcement officers

— a Los Angeles County Sheriff’s deputy at the gas station and a Sheriff’s3

detective the next day

— and each time recounted the ev ents set forth above. Following his arrest, defendant called Jamie more than 120 times from jail. In those calls, Jamie told defendant that she “forg[a]ve” him; accepted defendant’s proposal that he would marry her if she “g [ o ] t [ him] out of here”; open ly discussed whether to lie on the stand or to ignore the subpoena to testify at trial; and ultimately assured defendant that she knew “exactly what to say and . . . how to say it and everything

. ”
II. Procedural Background The People charged defendant w ith (1) making criminal
threats (Pen. Code, § 422), 1 and (2) misdemeanor vandalism
(§ 594, subd. (a)). 2 The People also alleged that defendant had “personally used a deadly and dangerous weapon” “in the
commission of” the criminal threats offense (§ 12022, subd. (b)(1)). The People further alleged that defendant’s 2009 conviction for robbery (§ 211) constituted a prior serious felony (§ 667, subd. (a)(1)) as well as a strike under our state’s Three Strikes Law (§§ 667, subds. (b)

- (j), 1170

. 12, subds. (a)

- (d)). The matter proceeded to a jury trial. Defendant waived his right to counsel and represented himself. Despite providing the same account of what happened on the 911 call and to two law enforcement officers and despite reminding defendan t on one of

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 The People originally charged the vandalism count as a felony, but the trial court granted the People’s subsequent motion to interlineate the charge to be a misdemeanor based on the value of the damage done to the car.4

the jail calls that he had “fucken stabbed” her car, Jamie testified
and disavowed all of her prior statements for a variety of

reasons

— including that (1) she could not “remember” what had happened because she was “off [her] medi c ation

, ” becaus e she was “on drugs

, ” and because she suffers from “post

- traumatic
stress disorder

, ” and (2) she made it all up because she was
“mad” at defendant . Defendant also testified and denied ever threatening Jamie. The jury convicted defendant of both counts. After defendant admitted his prior robbery conviction, the court imposed an 11

- year prison sentence on the criminal threats count, comprised of six years for the underlying crime (calculated as a high

- end base term of three years doubled due to the prior strike) plus five years for the prior serious felony. The court imposed but stayed a two

- year enhancement for use of a dangerous or deadly weapon. The court imposed a concurrent,
time

- served jail sentence for the misdemeanor vandalism count.
Defendant filed this timely appeal.

DISCUSSION Defendant argues that the trial court erred in not instructing the jury that it must unanimously agree upon which
of defendant’s threats to kill Jamie

— the one on the phone or the one made in person

— is the basis for t he criminal threats charge. Because this is an instructional issue, our review is de novo. ( People v. Covarrubias (2016) 1 Cal.5th 838, 919.) We reject defendant’s argument for two reasons

— namely, there was no instructional error and, even if there was, it was harmless.
I. No I nstructional E rror A jury verdict must be unanimous. (Cal. Const., art. I, § 16.) Consequently, and as a general rule, “when the evidence5

suggests more than one discrete crime, . . . the court must require the jury to ag ree on the same criminal act.” ( People v. Russo (2001) 25 Cal.4th 112 4 , 1132 ( Russo ); People v. Grimes (2016) 1 Cal.5th 698, 727 [looking to whether the evidence suggests more
than “ ‘“ one discrete criminal event. ”’ ”]; People v. Quiroz (2013) 215 Cal.App. 4th 65, 73 [“Where the evidence suggests that the defendant might have committed more than one crime, the court must instruct the jury that it must agree on which of the acts

— and, hence, which of the crimes

— the defendant committed.”].) A defendant’s separ ate acts do not suggest more than one discrete
crime

— and thus do not necessitate a unanimity instruction

— if they “are so closely connected,” including “closely connected in time,” “as to form part of one transaction.” ( Stankewitz

, supra , 51 Cal.3d at p. 1 00; People v. Crandell (1988) 46 Cal.3d 833, 875 ; People v. Deidrich (1982) 31 Cal.3d 263, 282 .) 3 Courts are more likely to view separate acts as form ing part of one transaction “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.” ( Stankewitz , at p. 100; Crandell , at p. 875.) No unanimity instruction was required in this case because
defendant’s threats to kill Jamie were “so closely connected” that they c onstitute d “part of one transaction.” They were “closely

3 A unanimity instruction is also not required where the statute creating the crime “contemplates a continuous course of conduct o f a series of acts over a period of time.” ( People v. Jennings (2010) 50 Cal.4th 616, 679.) The statute defining criminal threats is not such a statute ( People v. Salvato (1991) 234 Cal.App.3d 872, 883 ( Salvato ) ), so this branch of the rule governing unan imity instructions does not apply here.6

connected in time” because defendant ma d e his in

- person threat to kill Jamie just minutes after he threatened to kill her over the phone. The threats were also made to the same person and with
the same motive of punishing Jamie for perceived infidelity. Additionally, de fendant offered the same defense to both

— namely, “I didn’t do it.” And there was no other reasonable basis for the jury to distinguish between the two threats. On analogous facts, courts have consistently concluded that no unanimity instruction was necessary . (E.g., People v. Percelle (2005) 126 Cal.App.4th 164, 182 [ defendant ’ s acts occurred during a little over a one

- hour period ; no unanimity instruction required ]; People v. Dieg uez (2001) 89 Cal.App.4th 266, 275 [ defendant ’s multiple false statements (to fraudulently obtain benefits) made during a single medical v isit ; no unanimity instruction required ]; People v. Haynes (1998) 61 Cal.App.4th 1282, 1296 [defendant’s acts oc curred “ just minutes and blocks apart and involved the same property ”; no unanimity instruction required ]; People v. Mota (1981) 115 Cal.App.3d 227, 233 [multiple sexual assaults over the course of one hour ; no unanimity instruction required ].)
Defendant offers three reasons why, in his view, a unanimity instruction was required. First, he argues that People
v. Melhado (1998) 60 Cal.App.4th 1529 ( Melhado ) establishes, as a matter of law, that his two threats do not constitute “one
transaction” and hence necessi tated a unanimity instruction. He is wrong. Melhado held that a trial court erred in not giving a unanimity instruction when the defendant made an in

- person threat to kill the victim at 9 a.m., left, and came back at 11 a.m. to make a similar threat; the victim had time in between the two visits to call the police and file a police report. ( Id. at pp. 1533,7

1535

- 1539.) Here, defendant’s threats were mere minutes apart; as the solid wall of precedent cited above indicates, this distinction in timing is c ritical. Second, defendant contends that Jamie’s conflicting testimony provided a reasonable basis for the jury to draw a distinction between the on

- the

- phone and in

person threats. Again, he is wrong. Jamie’s trial testimony certainly conflicted with h er 911 call and her contemporaneous
statements to law enforcement insofar as she testified defendant never threatened her but previously reported that he did over the phone and in person. But h er recanting was an all

- or

- nothing affair that provided no bas is to distinguish between the separate acts. Lastly, defendant asserts that the prosecutor effectively
conceded that defendant’s acts were not part of “one transaction” when she argued that he “threatened to kill Jamie not once but
twice.” This assertion is legally and factually wrong. It is legally wrong because the argument of counsel does not excuse this court from having to “determine[] whether there is any ‘reasonable basis’ for the jury to distinguish between” the defendant’s acts. ( People v. Harr is (1994) 9 Cal.4th 407, 431, fn. 14.) And it is factually wrong because it fixates on a single sentence and ignores the prosecutor’s further argument that defendant’s two statements together constituted “a very clear, immediate and
unconditional threat .” (Italics added.)
II. Any Error Is Harmless If there was any error in failing to give a unanimity instruction in this case, it was harmless beyond a reasonable
doubt. ( Salvato

, supra , 234 Cal.App.3d at p. 884.) That is because (1) the jury found that the defendant personally used a deadly or dangerous weapon in the commission of the criminal
threats crime , and (2) defendant used a knife only when he made8

the in

- person threat. Accordingly, we know that the jury unanimously found that he committed a cri minal threat during
the in

- person interaction , which is sufficient to sustain his
conviction.
DISP O SITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

______________________, J. HOFFSTADT

We concur:

_____________

____________, P. J. LUI

_________________________, J. ASHMANN

- GERST