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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TIMOTHY JAMES QUALEY, 

Defendant and Appellant.

 B300220

 (Los Angeles County

 Super. Ct. No. PA091747)

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, Susan Sullivan Pithey, Assistant 

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

Attorneys General, for Plaintiff and Respondent.

* * * * * *
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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 instruction. 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 BACKGROUND

I. Facts

In October 2018, defendant and Jamie R. (Jamie) were in a 

dating relationship that involved “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, 

accused 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, defendant 

“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 and 

started to approach the driver’s side of the car, Jamie hit the gas, 

bumped 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 defendant had 

“threatened” her “at [her] house” 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’s 
3

detective the next day—and each time recounted the events 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”; openly 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 with (1) making criminal 

threats (Pen. Code, § 422),1and (2) misdemeanor vandalism 

(§ 594, subd. (a)).2The 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 defendant 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] medication,” because 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 the 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 Instructional Error

A jury verdict must be unanimous. (Cal. Const., art. I, 

§ 16.) Consequently, and as a general rule, “when the evidence 
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suggests more than one discrete crime, . . . the court must require 

the jury to agree on the same criminal act.” (People v. Russo

(2001) 25 Cal.4th 1124, 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 separate 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. 100; People v. Crandell (1988) 46 Cal.3d 833, 875; 

People v. Deidrich (1982) 31 Cal.3d 263, 282.)3Courts are more 

likely to view separate acts as forming 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 constituted “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 of 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 unanimity instructions does not apply here. 
6

connected in time” because defendant made 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, defendant 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. Dieguez (2001) 89 Cal.App.4th 266, 275 

[defendant’s multiple false statements (to fraudulently obtain 

benefits) made during a single medical visit; no unanimity 

instruction required]; People v. Haynes (1998) 61 Cal.App.4th 

1282, 1296 [defendant’s acts occurred “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 necessitated 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 critical. 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 inperson threats. Again, he is wrong. Jamie’s trial testimony 

certainly conflicted with her 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 her recanting was an all-or-nothing 

affair that provided no basis 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. Harris (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 made 
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the in-person threat. Accordingly, we know that the jury 

unanimously found that he committed a criminal threat during 

the in-person interaction, which is sufficient to sustain his 

conviction.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST