50 Cal.App.5th 715
Cal. Ct. App.2020Background
- Cole and Ricardo had an on‑again/off‑again intimate relationship during which Ricardo financially supported Cole, including paying for Cole’s phone plan.
- After Ricardo sought to end the relationship and demanded repayment, the men met on June 8, 2017; Ricardo examined Cole’s phone, became angry, and threw it down.
- Cole then repeatedly struck Ricardo, who fell, and while Ricardo lay on the ground Cole took Ricardo’s work and personal cell phones and left after threatening him.
- Ricardo suffered facial injuries and a broken nose; police apprehended Cole soon after with blood on him and Ricardo’s phones recovered from Ricardo’s pockets.
- Cole was charged with multiple offenses; the jury convicted him of assault (count 2), battery with serious bodily injury (count 3), and second‑degree robbery (count 4); other counts were acquitted or dismissed. The court suspended imposition of sentence and placed Cole on three years’ probation (with concurrent probationary terms reflected in the minute order).
- On appeal Cole argued the trial court erred by not giving a unanimity instruction for the robbery count and that the court improperly placed him on separate grants of concurrent probation rather than a single probationary term based on his aggregate sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a unanimity instruction was required for the robbery conviction | No—evidence showed a single robbery; jury need not agree on specific act supplying force or fear | Yes—failure to instruct violated unanimous‑verdict right because jurors might have convicted based on different acts | No unanimity instruction required: only one discrete robbery/continuous course of conduct existed, so jurors need not agree on which specific act established force or fear |
| Whether Cole is subject to separate concurrent probation grants or a single probationary term | AG agreed single probationary grant applies; probation should be based on aggregate maximum possible term | Cole argued he was placed on two separate grants of probation for separate offenses | Judgment modified to clarify Cole is subject to a single three‑year grant of felony probation based on the aggregate term |
Key Cases Cited
- People v. Prieto, 15 Cal.App.4th 210 (1993) (sets out elements of robbery)
- People v. Madden, 116 Cal.App.3d 212 (1981) (unanimity instruction required when evidence shows multiple discrete crimes)
- People v. Gunn, 197 Cal.App.3d 408 (1987) (discusses jury unanimity risks when multiple acts alleged)
- People v. Epps, 122 Cal.App.3d 691 (1981) (same)
- People v. Russo, 25 Cal.4th 1124 (2001) (distinguishes single discrete crime from multiple offenses for unanimity instructions)
- People v. Grimes, 1 Cal.5th 698 (2016) (jury need not agree on specific theory when only one discrete crime is shown)
- People v. Avina, 14 Cal.App.4th 1303 (1993) (continuous‑course‑of‑conduct exception to unanimity rule)
- People v. Stankewitz, 51 Cal.3d 72 (1990) (continuous conduct rule applies when same defense offered to each act)
- People v. Gomez, 43 Cal.4th 249 (2008) (force or fear during caption through asportation can elevate larceny to robbery)
- People v. Covarrubias, 1 Cal.5th 838 (2016) (discusses continuity of conduct and robbery principles)