People v. Price CA5

California Court of Appeal Oct 17, 2014 No. F065515Unpublished

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Holding. The court held that a unanimity instruction was not required for the battery conviction because the prosecutor made a clear election during closing argument that the charge was based specifically on the defendant's act of biting the officer.

Issues

Whether the trial court had a sua sponte duty to provide a unanimity instruction for the battery charge when multiple acts of force were presented at trial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the court was not required to give the unanimity instruction for count 1 because the prosecutor used closing argument to make an election that count 1 and the lesser included offenses were based on defendant’s act of biting Chabrajez.”

“the prosecutor clearly made an election in his closing argument that the charged and lesser included offenses were based on defendant’s act of biting Chabrajez.”

Filed 10/17/14 P. v. Price 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F065515 Plaintiff and Respondent, (Super. Ct. No. VCF246681) v.

CHERYL LYNN PRICE, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge. Linda J. Zachritz, 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, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Kane, J. and Detjen, J.

INTRODUCTION After a jury trial, defendant Cheryl Lynn Price was convicted of two felony counts of resisting an executive officer (Pen. Code,1 § 69), and one count of misdemeanor battery on a peace officer (§ 243, subd. (b)). She was sentenced to two years, to run concurrent to the term imposed in Tulare County Superior Court case No. VCF232931. On appeal, defendant contends her conviction for battery on a peace officer must be reversed because the court failed to give the unanimity instruction to the jury. We will affirm. FACTS On the evening of November 22, 2010, Deputy Karyse Sandoval booked defendant in to the Bob Wiley Detention Facility in Bakersfield. Defendant cooperated with the process until Sandoval said they were going to take her photograph. Defendant became angry and refused to have her photograph taken. She yelled at Sandoval that “she was going to take … no fucking picture.” Sandoval tried to calm defendant down, but to no avail. Sergeant John Chabrajez heard the disturbance and approached defendant. Chabrajez asked defendant to have her mug shot taken, and offered to only take one instead of three separate pictures. Defendant cursed Chabrajez and said, “Fuck no, no picture tonight.” Chabrajez noticed defendant had a small pencil in her left hand, which an officer gave her to sign her paperwork. Chabrajez ordered defendant to drop the pencil and place her hands behind her back. Defendant was angry, continued to yell, and did not obey his orders. Defendant clenched the pencil tightly in her hand and walked toward Chabrajez. Chabrajez stepped back and away from defendant.

People v. Price CA5

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