Filed 12/17/19 P. v. Prakash CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

AMIT AMEEL PRAKASH,

Defendant and Appellant.

C076773

(Super. Ct. No. 12F08314)

A jury convicted defendant Amit Ameel Prakash of criminal threats (Pen. Code, § 422), misdemeanor battery on a spouse (§ 243, subd. (e)(1)), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)). The trial court found unusual circumstances warranting a grant of probation, imposed a three-year state prison term, suspended execution of sentence, and placed defendant on five years’ formal probation with 365 days in county jail.

On appeal, defendant contends the trial court erred by giving a unanimity instruction regarding the criminal threats count that it contends was incorrect in the context of this case. We conclude that a unanimity instruction was not necessary and that it was harmless error to give the instruction about which defendant complains.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Criminal Threat Charge and the Nature of the Prosecution’s Proof

Defendant was charged in count one with criminal threats in violation of section 422. It was alleged that the threat was conveyed to his wife, S.D., and that the threat caused her to be in sustained fear. Thus, the case was prosecuted on the theory that the threat was communicated to S.D. The issue on appeal involves who defendant threatened to kill, his wife S.D. or their baby daughter A.D.

At trial, S.D. recanted earlier statements, so the prosecution relied in large measure on prior statements she made to several people to prove what happened.

The Prosecution Case

Defendant, wife S.D., and daughter A.D. went to a birthday party. S.D. got upset with defendant for drinking too much and ignoring her and their baby. A.D. was asleep when they arrived home around midnight, so S.D. put her to bed upstairs.

Thereafter, defendant and S.D. continued their argument. The argument escalated and defendant grabbed S.D. by the throat and choked her. When she struggled to get free, defendant shoved her causing her to fall and her head to hit the ground. S.D. lost consciousness. After S.D. regained consciousness, she told defendant that she was leaving him. According to her statement to police, S.D. said defendant responded by threatening to kill their daughter if she left him, while holding a knife a foot away from the sleeping baby’s head.

S.D. slept in a separate bedroom that night. As soon as defendant left for work the next day, she went to the next door neighbor, Amna Ali, whom she told about the incident. Ali testified that S.D. said she was really afraid for her and her daughter’s life. S.D. was wearing pajamas, appeared to be afraid, and was crying.

Ali testified that S.D. asked her to call the police. Ali called 911 and gave the phone to S.D. During the recorded call, S.D. told the 911 operator that the night before, defendant got drunk, they got into a fight, and then “he [] beat me up.” She explained that defendant punched her with his fists and pushed her to the floor. When the dispatcher asked her if there were any guns or knives in the house, S.D. said, “he threatened me that if I go out he would kill my daughter with a knife.” (Italics added.) S.D. also told the operator defendant had gone to work but since returned home and was looking for her. The police responded and arrested defendant at the couple’s home.

S.D. told a responding officer about the incident. The officer testified that S.D. was shaken up and appeared to have been crying. S.D. told him that defendant threatened to kill their daughter if she left him. In addition, she explained the physical assault that led up to the threat. S.D. also told the officer defendant had abused her for the two years they were married. In one prior incident, defendant kicked her in the stomach shortly after she gave birth to A.D. by caesarian section, causing her incision to open up. When she went to the hospital, she told the doctor she had fallen from the bed. The officer explained emergency protective orders and S.D. immediately said she wanted one.

After speaking to the officer, S.D. was taken to the hospital by another neighbor, Tejinder Thiara, and her husband. S.D. had a bump on her head and complained of head pain. She was shaking, said she was scared, and explained defendant had abused her before. She told Thiara about the assault after her Cesarean section. Thiara’s husband said S.D. was “all confused.” Thiara remembered two things S.D. told her about what had happened. S.D. said defendant “had a knife and was holding it against the child and said that if you don’t come back or whatever, that — he was threatening to hurt the baby.” (Italics added.) The other thing Thiara remembered was S.D.’s explanation of how she left the house that morning.

At the hospital, S.D. was tearful and anxious. She told the doctor that defendant had thrown her to the ground, strangled her, and threatened to kill her and their baby with a knife. She complained of pain at a level of eight on a scale of one to ten. She also related the incident where defendant kicked her after the Cesarean section.

Afraid that defendant might be released from jail, S.D. stayed with another neighbor after she left the hospital. The next day, S.D. spoke to police about the incident again, and then went to stay with relatives in Canada. In the second police interview, she showed the officer a two-inch scratch on her neck and the knife defendant held over their daughter.

At trial, S.D., who was still married to defendant and had resumed living with him, denied that defendant ever choked her or pushed her to the floor. She claimed she had not hit her head on the floor. She also claimed defendant did not threaten her or their daughter. S.D. maintained that Ali had called the police on her own and had told her what to say. S.D. also denied making the statements to the responding officer and to the doctor. She claimed not to recall telling defendant she would leave him.

The Defense

Arpana Singh, the wife of one of defendant’s friends, testified that S.D. understood only basic English. A defense investigator also related S.D.’s limited command of English and that she told him the police report was inaccurate because defendant never attacked her.

Defendant testified. He stated that he wanted to stay longer at the party, but changed his mind after his wife became upset and angry when he would not leave. They left around midnight and argued as they drove home with the baby sleeping in her car seat.

S.D. put the baby in the crib when they got home. Then, according to defendant, she proceeded to nag defendant about his drinking. He testified that he pushed S.D. because she was in his personal space and she fell to the floor, but did not hit her head or sustain any other injury. There was a knife, but it was kept in an upstairs drawer for religious reasons. He acknowledged that S.D. had threatened to leave him that night, but he said he never threatened to kill her or his daughter.

Defendant left for work at 7:30 a.m. the next day, but returned about 30 minutes later. He rang the doorbell at Ali’s home and no one answered, so he returned home, where he was arrested. He told the police that he pushed his wife because she would not stop nagging him about his drinking.

Unanimity Instruction

As noted, defendant was charged with criminal threats involving S.D. as the victim in count one. The trial court determined that a unanimity instruction would be appropriate. During a discussion about the jury instructions, the trial court said:

“Because Count 1 now could allow the jury to find you guilty if the threat was communicated with regard to either [S.D.] or [A.D.], I added an instruction saying that the jury has to agree unanimously on which one of the two possible victims before they can find you guilty. In other words, the jury cannot find you guilty of Count 1 if [it] thought that you threatened your wife but not your child, and [it] thought you threatened your child but not your wife. They all have to agree, all twelve, either wife or child or both. So that’s why I entered that instruction.”

The trial court gave the standard unanimity instruction, CALJIC No. 3500, as follows: “The defendant is charged in Count 1 with having threatened to commit a crime which would result in death or great bodily injury to [S.D.] and/or [A.D.]. . . . [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed.” Defense counsel did not request to modify or clarify the instruction.

As for count one, criminal threats, the court gave the standard instruction, CALCRIM No. 1300, which read in pertinent part: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to [S.D.] and/or [A.D.]; [¶] 2. The defendant made the threat orally; [¶] 3. The defendant intended that his statement be understood as a threat; [¶] 4. The threat was so clear, immediate, unconditional, and specific that it communicated to [S.D.] a serious intention and the immediate prospect that the threat would be carried out; [¶] 5. The threat actually caused [S.D.] to be in sustained fear for her own safety or for the safety of her immediate family . . . [¶] AND [¶] [S.D.’s] fear was reasonable under the circumstances.” (Italics added.)

The Prosecutor’s Closing Argument

The prosecutor explained that the jurors had to agree who defendant threatened to harm in discussing the elements of count one. Beginning with the first element for criminal threats, the prosecutor said: “Defendant willfully threatened to unlawfully kill [A.D.], his daughter, and/or [S.D.]. We heard evidence that he threatened to kill [S.D.] if she left, and also the daughter, with a knife to her neck. So it can be either one. You just all have to agree.” The prosecutor continued: “The threat actually caused [S.D.] to be in sustained fear for her safety and/or the safety of her immediate family. And, again, this is the and/or, because the threat was to kill her so she could be in fear for herself, or it could also be this human fear for her daughter’s life, that he would harm her daughter, either one.”

DISCUSSION

Defendant contends the unanimity instruction given by the trial court constitutes reversible error because it did not “tell the jury that they needed to unanimously decide to which victim the criminal threats were made – [S.D.], [A.D.], or both.” He argues “the instruction should have told the jury that the People presented evidence that [defendant] threatened more than one victim to prove that [defendant] committed count one, and that they could not find [defendant] guilty unless they all agreed on which victim was threatened.” We disagree. Indeed, as we shall explain, no unanimity instruction was required at all.

A jury verdict in a criminal case must be unanimous. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) Thus, “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.” (Ibid., italics added.) “This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ ” (Ibid.) To illustrate the application of this rule, the Russo court cited an earlier case where a defendant was convicted of a single count of bribery, but the evidence showed two discrete bribes and the court concluded the absence of a unanimity instruction was reversible error because without it, some jurors may have believed the defendant was guilty of one act of bribery while others believed he was guilty of the other act of bribery. (Ibid., discussing People v. Diedrich (1982) 31 Cal.3d 263, 280-283.) Even in the absence of a request, a unanimity instruction “must be given sua sponte where the evidence adduced at trial shows more than one act was committed which could constitute the charged offense, and the prosecutor has not relied on any single such act. [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275, italics added.)

However, a unanimity instruction is not required where the defendant committed one discrete crime, but there is conflicting evidence about how the crime was committed. As our high court has made clear, “where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed . . . , the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty.” (Russo, supra, 25 Cal.4th at p. 1132.)

At trial, S.D. testified defendant never threatened to kill her or their daughter. The evidence showed that previously, S.D. said defendant made a threat but gave different accounts of who defendant threatened to kill. She told the 911 operator, a responding officer, and Thiara that defendant threatened to kill her daughter. She told Ali that defendant held a knife to her and A.D. She told the doctor that defendant threatened to kill her and A.D. with a knife.

Defendant contends that the unanimity instruction given to the jury “was confusing because the People did not present evidence of more than one act. Rather, there was one act, which could have been perceived to be directed at more than one victim or one of the victims in the alternate [sic], and the jury was required to unanimously decide which victim was being threatened.” (Italics added.) According to defendant, this alleged deficit in the instruction meant “there may not have been unanimous agreement among the jury members” as to whether S.D. “feared for herself or for [A.D.].” Defendant asserts that the court should have tailored the instruction so that the jury had to unanimously agree as to “the person for whom [S.D.] was in sustained fear of death or great bodily injury.”

Defendant is partially correct. He is right when he observes the evidence did not show the commission of more than one act. Thus, the evidence showed only one discrete crime. It is for this very reason that a unanimity instruction was not required. The evidence shows a single act that could support a guilty verdict, defendant’s threat communicated to S.D., upon which there was conflicting evidence as to whether defendant threatened A.D., S.D. or both of them. As our high court has made clear, no instruction on unanimity is necessary where, as here, there was only one discrete crime but disagreement on how the crime was carried out. (Russo, supra, 25 Cal.4th at p. 1132.) Thus, we conclude that the trial court erred in giving a unanimity instruction here.

Any error in giving an unnecessary unanimity instruction is harmless. The so called “act” as contemplated by the trial court, and that must have been understood by the jury, relates to the person defendant threatened to kill. The prosecutor argued as much in closing argument. Thus, to reach its guilty verdict under the unanimity instruction, the jury necessarily unanimously decided who was the subject of defendant’s threat to kill. For example, if it decided the threat was to kill S.D., by its verdict, the jury necessarily decided the threat caused her to be in sustained fear that she would be injured. If the jury decided instead that the threat was to kill A.D., the jury’s verdict reflects that the jury necessarily decided that S.D. was in sustained fear that A.D. would be killed. If the jury decided that defendant threatened to kill both of them, the jury’s verdict necessarily reflects the jury’s determination that S.D. was in sustained fear that she or the infant would be harmed.

This analytical path would have been aided not only by the prosecutor’s closing argument, but by the trial court’s instructions on how to address conflicting evidence. CALCRIM No. 302 told the jury: “If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of any witness without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.”

Defendant was not prejudiced by the unnecessary instruction. We conclude the error here is harmless under either standard. (See People v. Watson (1956) 46 Cal.2d 818, 836 [“a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error”]; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] [“before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt”].)

 

DISPOSITION

The judgment is affirmed.

/s/

MURRAY, J.

We concur:

/s/

HULL, Acting P. J.

/s/

DUARTE, J.