People v. Mayberry CA2/8

Filed 6/4/15 P. v. Mayberry CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B257604

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA095927) v.

JAMES EDWARD MAYBERRY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Arthur Jean, Jr., Judge. Affirmed as modified.

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

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthew S. and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant James Edward Mayberry was convicted of one count of attempting to dissuade a witness in violation of Penal Code section 136.1, subdivision (a)(2),1 arising out of a course of conduct in which he threatened a witness four times over a 10-day period. Defendant contends the trial court erred in failing to sua sponte give the jury a unanimity instruction. We conclude that no instruction was necessary, and affirm; we also direct the abstract of judgment be modified to properly reflect the offense of which defendant was convicted.

PROCEDURAL BACKGROUND

On September 27, 2013, defendant was charged by information with one count of attempting to dissuade a witness by force or threat, in violation of Penal Code section 136.1, subdivision (c)(1). It was alleged that defendant committed this offense, “[o]n or between May 20, 2013 and May 30, 2013.” It was also alleged that defendant had suffered a “strike” within the meaning of the “Three Strikes” law (Pen. Code, § 1170.12) and four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The case proceeded to jury trial. No unanimity instruction was requested or given. The jury was instructed on the lesser included offense of attempting to dissuade a witness (without force or threat) in violation of Penal Code section 136.1, subdivision (a)(2). The jury found defendant not guilty of the charged offense, but guilty of the lesser included offense. However, the verdict form presented to the jury erroneously identified the lesser as a violation of subdivision (b)(1) of section 136.1, rather than subdivision (a)(2) of that statute. A bench trial was held on the prior enhancement allegations; the trial court found the strike and three prior prison term allegations to be true. Defendant was sentenced to a total term of nine years in prison, calculated as the upper term of three years, doubled for