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People v. Sherrell4/9/2004
On the morning of September 17, 2002, David Foley was at the Bear Valley Police Department in Kern County. He was assisting law enforcement in setting up an undercover drug buy. Foley hoped to "make a percentage" of the drug buy, as well as reduce a drunk driving charge. The undercover drug buy that was being set up by the police involved Sherrell and Duane Tilley.
That evening, Foley was asleep in his bedroom when he awoke to the sound of someone beating on the window. Foley was staying at a residence on Fawn Way in Bear Valley, which he was remodeling in anticipation of it being rented to Cora Webb. With the assistance of Sherrell and Tilley, Webb had begun moving items into the home.
After awaking, Foley heard Sherrell's and Tilley's voices. He went to the front door, opened it, and Sherrell and Tilley pushed their way inside. Sherrell was yelling at Foley and asking why Foley had told Sherrell's wife, Julie, that Sherrell had a girlfriend. Sherrell hit Foley in the face with his fist, sending Foley backward into a wall.
Sherrell pinned Foley against the wall and again demanded to know why Foley told Julie [FN1] that Sherrell had a girlfriend. Foley denied making any such statement. At that point, Sherrell and Tilley conferred for three or four minutes. Sherrell then told Foley that Foley would have to come with him and tell Julie that she was a "liar." Sherrell told Foley that if he didn't come with Sherrell and Tilley back to Sherrell's condominium, Sherrell would kill or beat Foley "real bad."
FN1. We refer to Julie Sherrell by her first name to avoid confusion with appellant. No disrespect is intended.
Tilley and Sherrell grabbed Foley by the arms and escorted him to their car. They drove to the condominium complex where Sherrell lived. During the drive, Sherrell and Tilley continued to threaten Foley. Foley was in the back seat of the car and there were no interior door handles on the doors. After arriving at the complex, Tilley and Sherrell again took Foley by the arms and escorted him into the condominium.
There were two females in the condominium, Julie and Tammi Jo Klein. Klein is Tilley's ex-wife. Sherrell told Foley to tell Julie that she was a liar. When Julie called Foley a liar, Sherrell punched Foley. After this, Sherrell and Julie went into another part of the condominium.
At Sherrell's request, Tilley and Klein took Foley back to the house on Fawn Way. When they arrived at the house, Klein got out of the car and went inside, staying for about 10 minutes. Tilley felt around under the front seat of the car, placed something under his shirt, and then opened the door for Foley to exit. As he opened the door, Tilley dropped some bullets onto the ground and Foley thought he had a gun hidden under his shirt.
*2 Tilley ordered Foley to enter the house, kneel down in the kitchen, and place his head against the cabinets. Foley, thinking he was about to be killed, bolted out the door and ran to a neighbor's house. Foley asked his neighbor to call the police, who arrived within 15-20 minutes.
At the police station, Foley identified Sherrell and Tilley from photographs shown to him by officers. Sherrell was charged with burglary, making a terrorist threat, kidnapping, and misdemeanor battery. A jury convicted Sherrell of all charges.
DISCUSSION
I. Terrorist Threat
Unanimity Instruction
Sherrell contends the trial court erred in failing to instruct the jury sua sponte with CALJIC No. 17.01 because there was testimony of multiple acts, any of which could have been the terrorist threat. [FN2] Sherrell argues he was entitled to have the jury agree as to which act constituted the terrorist threat and, absent the instruction, the conviction on this count must be reversed.
FN2. The jury was instructed w
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