People v. Perry CA5

Filed 7/22/14 P. v. Perry CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F066777 Plaintiff and Respondent, (Super. Ct. No. CRL007937) v.

FRANK ENRICO PERRY, OPINION Defendant and Appellant.

THE COURT1 APPEAL from a judgment of the Superior Court of Merced County. Donald J. Proietti, Judge. James M. Kehoe, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

1Before Cornell, Acting P.J., Poochigian, J., and Detjen, J.

INTRODUCTION Frank Enrico Perry, appellant, contends the trial court reduced the prosecution’s burden of proof in its instructions to the jury on two counts of making a criminal threat (Pen. Code, § 422)2 and that the trial court erred in failing to give the unanimity instruction. We reject these contentions and affirm the judgment. On August 14, 2012, appellant was charged in an information with making a criminal threat to Denise Gutierrez-Medina (§ 422, count 1), making a criminal threat to Lucero P. (§ 422, count 2), being a felon in possession of ammunition (§ 30305, subd. (a)(1), count 3), and being a felon in possession of a firearm (§ 29800, subd. (a)(1), count 4). The information also alleged a prior prison term enhancement (§ 667.5, subd. (b).) At the conclusion of a jury trial on December 17, 2012, appellant was found guilty of all four counts. In a bifurcated proceeding, the trial court found the enhancement true. The trial court sentenced appellant to prison for three years on count 1. The court sentenced appellant to consecutive terms of eight months (one-third the midterm of two years) on counts 2, 3, and 4. The court sentenced appellant to a consecutive term of one year for the prior prison term enhancement. Appellant’s total prison term is six years with presentence custody credits of 634 days. FACTS Offense Denise Gutierrez-Medina testified that she lived in a ranch house in Merced County. She understands only a little English and some curse words. Appellant lived in a trailer on the same property and in front of the Gutierrez-Medina home. Appellant had a wheelchair and used crutches and a cane to walk. At first, Gutierrez-Medina’s family got along with appellant.