People v. Pittman CA2/6

Filed 3/1/22 P. v. Pittman CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B310483
(Super. Ct. No. KA124007)
Plaintiff and Respondent, (Los Angeles County)
v.
CLYDE OZELL PITTMAN,
Defendant and Appellant.
Clyde Ozell Pittman appeals the judgment entered after a
jury convicted him of arson of a structure (Pen. Code,1 § 451,
subd. (c)) and making criminal threats (§ 422, subd. (a)). In a
bifurcated proceeding, appellant admitted that he had a prior
strike and serious felony conviction (§§ 667, subds. (a)-(j),
1170.12, subd. (b)). The trial court sentenced him to an
aggregate term of nine years and four months in state prison,
consisting of the midterm of four years for the arson doubled for
the strike prior, plus sixteen months (one-third the midterm
1 All statutory references are to the Penal Code.
doubled) for the criminal threat. Appellant contends the court
erred in failing to give a unanimity instruction (CALCRIM No.
3500) on the criminal threats count, and in accepting the jury’s
verdict in appellant’s absence rather than granting a
continuance. We affirm.
FACTS AND PROCEDURAL HISTORY
At about 5:30 p.m. on January 27, 2020, appellant’s mother
Genevieve Urzua was at home with her husband when she saw a
bright light around her front door. Urzua opened the door and
saw flames. She closed the door, called 911, and left the house
through the back door. Neighbors helped her extinguish the fire
with a garden hose.
Los Angeles County Sheriff’s Detective Alex Miller went to
Urzua’s residence in response to the 911 call. The front door and
door frame were charred and there was a partially filled gas can
on the front lawn. Based on his training and experience,
Detective Miller concluded that the fire was deliberately started.
When interviewed, Urzua and her husband said they had no idea
who might have started the fire.
The following morning, Urzua spoke with appellant on the
telephone and asked him “why did you try to burn me?”
Appellant replied with a text stating, “That’s what you get. You
didn’t learn.” At 3:34 p.m. that afternoon, appellant sent Urzua
text messages stating “Identity theft is hard, but I’m in your
backyard” and “I’m coming for you G. . . . asleep, please or at
work.”2 At 3:48 p.m., appellant You fucked up. Coming for you”
and “sleeping.” At 4:12, he texted “You all die.”
Urzua called Detective Miller and left a voicemail stating
that appellant had essentially admitted starting the fire and was
2 “G” and “Gina” referred to appellant’s sister Legina.
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sending her text messages threatening to harm her and her
family. Urzua urged the detective not to “wait til (sic.) another
burn of some kind happens or somebody is killed” and added that
appellant “needs to get off the streets and get mental health.”
When Detective Miller spoke to Urzua on the phone, she was
extremely upset and agitated and said something to the effect
“I’m afraid he’s going to do something to me or the family. He’s
going to harm me or light another fire.” Appellant was
subsequently located and arrested.
DISCUSSION
Unanimity Instruction (CALCRIM No. 3500)
Appellant contends the trial court prejudicially erred in
failing to give a unanimity instruction (CALCRIM No. 3500) 3 on
the criminal threats charge. We are not persuaded.
“[C]ases have long held that when the evidence suggests
more than one discrete crime, either the prosecution must elect
among the crimes or the court must require the jury to agree on
the same criminal act.” (People v. Russo (2001) 25 Cal.4th 1124,
1132.) “‘The prosecution can make an election by “tying each
specific count to specific criminal acts elicited from the victims’
testimony”—typically in opening statement and/or closing
argument. [Citations.] [¶] Under these principles, there is an
implicit presumption that the jury will rely on the prosecution’s
election and, indeed, is bound by it.’ [Citation.]” (People v.
Brugman (2021) 62 Cal.App.5th 608, 627.)
3CALCRIM No. 3500 states: “The People have presented
evidence of more than one act to prove that the defendant
committed the offense. You must not find the defendant guilty
unless you all agree . . . on which act (he/she) committed.”
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A trial court has a sua sponte duty to give a unanimity
instruction when “‘there is a risk the jury may divide on two
discrete crimes and not agree on any particular crime.’” (People
v. Covarrubias (2016) 1 Cal.5th 838, 878.) There are exceptions
to this rule. As relevant here, no unanimity instruction is
required if the case falls within the continuous-course-of-conduct
exception, which “arises in two contexts. [Citation.] ‘“The first is
when the acts are so closely connected that they form part of one
and the same transaction, and thus one offense. [Citation.] The
second is when . . . the statute contemplates a continuous course
of conduct of a series of acts over a period of time.”’” (People v.
Hernandez (2013) 217 Cal.App.4th 559, 572.) There also is no
need for a unanimity instruction if “‘the defendant offered the
same defense to both acts constituting the charged crime, so no
juror could have believed defendant committed one act but
disbelieved that he committed the other, or because “there was no
evidence from which the jury could have found defendant was
guilty of” the crime based on one act but not the other.’”
(Covarrubias, at p. 879, citing People v. Davis (2005) 36 Cal.4th
510, 562.)
Here, the prosecutor repeatedly told the jury during closing
argument that the criminal threats charge was based on
appellant’s text messages to Urzua stating “You fucked up. I’m
coming for you” and “You will die.” Moreover, these statements
formed a continuous course of conduct because they were all
made over the course of 24 minutes. (Compare People v. Melhado
(1998) 60 Cal.App.4th 1529, 1535-1536 [unanimity instruction
required in criminal threats case where defendant made
threatening statements two hours apart and the prosecutor did
not expressly elect either act as basis for charge].) Appellant also
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offered the same defense for each statement, i.e., that he did not
intend for the statements to be taken as threats and that Urzua
was not placed in fear by them. Finally, there was no evidence
from which the jury could have found appellant guilty of making
criminal threats based on one of the statements but not the
others.
In asserting otherwise, appellant misplaces his reliance on
People v. Salvato (1991) 234 Cal.App.3d 872. The court in that
case considered whether a unanimity instruction was required
where the defendant made a series of criminal threats against
the victim over a period of 16 months and through a variety of
media. Factually, the threats did not comprise a continuous
course of conduct because they were separated in time and
different in kind. The Salvato court considered whether the
criminal threats statute itself defined the offense as one involving
a continuous course of conduct and determined that the statute
refers to a single act taken at a particular moment in time. (Id.
at pp. 882-883.) The court concluded the trial court should have
required the prosecution to elect a particular threat on which it
relied to prove the offense. (Id. at p. 884.)
Salvato is inapposite because appellant’s threatening
statements occurred twenty-four minutes apart on a single day.
Because the statements were so closely connected, they
comprised a continuous course of conduct. (Salvato, supra, 234
Cal.App.4th at p. 882.) Moreover, the prosecutor repeatedly
identified the statements upon which the criminal threats charge
was based. A unanimity instruction was thus not required.
Because appellant offered the same defense to each of his
statements and the jury plainly rejected that defense, any error
in failing to give the instruction was also harmless beyond a
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reasonable doubt. (People v. Covarrubias, supra, 1 Cal.5th at pp.
879-880; People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188.)4
Receiving Of Verdict In Appellant’s Absence
Appellant also contends the court violated his statutory and
constitutional rights by accepting the jury’s verdict in appellant’s
absence rather than granting a continuance. We disagree.
Criminal defendants have a right to be personally present
at certain pretrial proceedings and at trial under various
provisions of law, including the confrontation clause of the Sixth
Amendment to the United States Constitution, the due process
clause of the Fourteenth Amendment to the United States
Constitution, and section 15 of article I of the California
Constitution. (People v. Cole (2004) 33 Cal.4th 1158, 1230.) More
specifically, a defendant has a “constitutional right to be present
at all critical stages of the criminal prosecution, i.e., ‘all stages of
the trial where his absence might frustrate the fairness of the
proceedings’ [citation], or ‘whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to
defend against the charge.’” (People v. Rodriguez (1998) 17
Cal.4th 253, 260.)
Our Supreme Court has recognized, however, that the right
to be present is not without limits. For example, “‘[u]nder the
Sixth Amendment’s confrontation clause, a criminal defendant
does not have a right to be personally present at a particular
4 Appellant also asserts that “neither . . . continuous course
of conduct exception remains valid” in light of Ramos v.
Louisiana (2020) __ U.S. __, 140 S.Ct. 1390 [206 L.Ed.2d 583],
which held that the Sixth Amendment’s right to a jury trial
requires a unanimous verdict in both state and federal court.
Suffice to state that nothing in Ramos supports such an
assertion.
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proceeding unless his appearance is necessary to prevent
“interference with [his] opportunity for effective cross-
examination.”’” (People v. Lewis and Oliver (2006) 39 Cal.4th
970, 1039 (Lewis and Oliver).) “‘[U]nder the Fourteenth
Amendment’s due process clause, a criminal defendant does not
have a right to be personally present at a particular proceeding
unless he finds himself at a “stage . . . that is critical to [the]
outcome” and “his presence would contribute to the fairness of
the procedure.” [Citation.]’” (Ibid.) Under the California
Constitution, “‘a criminal defendant does not have a right to be
personally present “[for] matters as to which [his] presence does
not bear a ‘“‘reasonably substantial relation to the fullness of his
opportunity to defend against the charge.’”’”’ [Citations.]” (Ibid.)
Moreover, California statutory law expressly provides that a
verdict in a felony trial may be received in the defendant’s
absence in the interest of justice. (§ 1148; Lewis and Oliver, at
pp. 1039-1040.)
When the jury reached its verdict on November 23, 2020,
appellant was in COVID quarantine at the county jail. The court
stated: “[Defense counsel] is suggesting that we bring the jury
back for December 7th . . . in hopes that [appellant] will be
definitely available on that date. . . . The issue is determining
whether or not our jurors will be available on December 7th for
purposes of unsealing the verdict, and if one or two are
unavailable, then we may have to reevaluate our options.”
After the jury confirmed it had reached a verdict, the
verdict was delivered to the court and sealed. The court then
asked the jurors and alternates “is there anyone amongst you
going to be unavailable . . . on December 7th for a morning
session.” Juror No. 7 replied that he “ha[d] reservations to be in
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Virginia at that time” and would not be returning until “[m]id
January.”
After discussing the matter with counsel outside the jury’s
presence, the court stated: “I think what I’m going to do is go
ahead and take the verdict in the absence of [appellant]; although
I still find that it is a critical stage, he definitely has a
constitutional right to be present. But the fact of the matter is
that the jury has decided the case. . . . [Appellant], through no
fault of his own, is unavailable, but the court cannot see its way
clear to delaying this verdict into January of next year so all
deliberating jurors . . . quite frankly, I don’t know if all
deliberating jurors will be available even in January when we
would have to reunite; so I’m going to just go ahead and bite the
bullet and make that decision . . . .” The court also reasoned that
waiting until January to read the verdict created a “danger . . . ,
in the event [appellant] is acquitted by this jury, that he would
definitely be seriously over detained in custody.”
The court did not err. Receiving the verdict in appellant’s
absence was proper because “a delay in announcing the verdict
might have disrupted the proceedings or resulted in the loss of
jurors.” (Lewis and Oliver, supra, 39 Cal.4th at p. 1040.)
Moreover, “[t]he court risked ‘exacting a heavy toll’ on the jury if
it had to wait for an uncertain or extended period to deliver its
verdict.” (Ibid.)
In any event, any error in receiving the verdict in
appellant’s absence would not compel reversal. As we have
noted, criminal defendants have no right to be present for
matters at which their presence does not bear a substantial
relationship to the fullness of their opportunity to defend against
the crimes with which they are charged. (Lewis and Oliver,
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supra, 39 Cal.4th at p. 1039.) There was no such relationship
here because the jury had reached a verdict and nothing
remained but for it to be read. As the People put it, “appellant’s
opportunity to defend against the charges was already over by
the time the jury had completed deliberations.” Accordingly, any
error in receiving the verdict in appellant’s absence was harmless
regardless of the standard of review.5
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
TANGEMAN, J.
5 For the first time on appeal, appellant also claims the
court erred in failing to consider the possibility that appellant
might be able to appear virtually for the reading of the verdict.
This claim was not raised below so it is forfeited. In any event,
nothing in the record indicates that such an appearance would
have been feasible given that appellant was under a COVID
quarantine.
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Mike Camacho, Jr., Judge
Superior Court County of Los Angeles
______________________________
Aurora Elizabeth Bewicke, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and David E. Voet, Deputy Attorney General,
for Plaintiff and Respondent.
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