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People v. Thomas6/12/2003
A jury convicted defendant of attempted robbery and petty theft. Based on his prior convictions for robbery and assault with a firearm, the court sentenced defendant to 40 years to life under the three strikes law. Defendant asserts instructional error, insufficient evidence, and cruel and unusual punishment. We affirm the judgment.
I. FACTS
On September 10, 2001, about 11:20 p.m., defendant entered an AM/PM store in Perris. Defendant went to the food line. It looked to the cashier, Ms. Walton, as if defendant was waiting for the other customers to leave. Defendant then came to the counter and asked Ms. Walton for cigarettes.
Ms. Walton placed the cigarettes on the counter. After she did so, defendant said, "This is a hold-up." Defendant had his hand underneath his shirt.
Defendant told Ms. Walton to open the cash register. She told defendant she could not open it. Defendant said he was going to kill Ms. Walton. She backed away from the register.
Defendant asked Ms. Walton to give him the cigarettes. She told him no. Defendant came around the counter and took the cigarettes. Ms. Walton moved away from the register. Defendant grabbed the cigarettes and left.
Police searched defendant's residence and found a jacket that an officer believed, based on a surveillance videotape of the incident, was the jacket the perpetrator was wearing in the videotape.
After he was arrested, defendant admitted to the police that he had taken the cigarettes. Defendant also admitted he was trying to get into the register to take some cash. He denied saying he would kill Ms. Walton.
II. DISCUSSION
A. Failure to Give Unanimity Instruction
Defendant contends the court had a sua sponte obligation to instruct the jury in the language of CALJIC No. 17.01, which would have required the jury to agree unanimously on which act or acts constituted the offense charged in count 1. That count charged robbery, and defendant was convicted of attempted robbery as a lesser included offense.
Defendant asserts, based on the prosecutor's closing argument, that there were at least seven discrete acts offered as a basis for conviction on count 1: (1) attempted robbery of the cigarettes; (2) robbery of the cigarettes; (3) attempted robbery of the cash register; (4) robbery of the cash register; (5) attempted robbery of both the cigarettes and the cash register; (6) robbery of both the cigarettes and the cash register; and (7) attempted robbery based on defendant's statement, "This is a hold-up" while he had his hand under his shirt. Of these, only acts (1), (3), (5), and (7) are relevant to defendant's argument, since he was acquitted of robbery.
" he failure to give CALJIC No. 17.01 does not require reversal unless `the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.' [Citations.]" (People v. Schultz (1987) 192 Cal.App.3d 535, 539.) Therefore, "where the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury's understanding of the case." (People v. Crawford (1982) 131 Cal.App.3d 591, 599.)
Similarly, " he unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The `continuous conduct' rule applies 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. [Citation.]" (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
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