People v. Lineker CA1/5

Opinion

Filed 9/21/26 P. v. Lineker CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A173151 v. MICHAEL LINEKER, (Contra Costa County Super. Ct. No. 04-23-00748) Defendant and Appellant.

Upset that John Doe, his neighbor, ran over a stray cat that he fed and unofficially adopted, defendant and appellant Michael Lineker broke the windows of John Doe’s truck with a pickaxe and returned home. While John Doe and his wife, Jane Doe, were inspecting the damage to the truck in their driveway, Lineker grabbed a gun, left his home, and fired multiple shots in their direction. The People charged Lineker with, among other things, one count of assault with a semiautomatic firearm against “Jane Doe and John Doe.” The jury convicted Lineker on that count, and he now appeals, contending that the trial court erred by failing to instruct the jury that it had to unanimously agree on the victim or victims of the assault. We find that any instructional error was harmless beyond a reasonable doubt and affirm.

1 BACKGROUND A. Procedural History An information charged Lineker with six felonies based on two separate incidents that occurred on May 2, 2023: (1) attempted murder of “Jane Doe and John Doe” (Pen. Code,1 §§ 664/187, subd. (a); count 1); (2) shooting at an inhabited dwelling (§ 246; count 2); (3) assault with a semiautomatic firearm on “Jane Doe and John Doe” (§ 245, subd. (b); count 3); (4) vandalism with over $400 in damages (§ 594, subd. (a); count 4); (5) criminal threats against Christopher Martin (§ 422; count 5); and (6) second degree burglary (§ 459, subd. (a); count 6). The information also charged Lineker with a misdemeanor, exhibiting a firearm (§ 417, subd. (a)(2)(B); count 7). Counts 1 through 4 related to the first incident and counts 5 through 7 related to the second incident.2 As to count 1, the information alleged that Lineker “intentionally discharged a firearm, a handgun” (§ 12022.53, subd. (c)). As to counts 3 and 5, it alleged that Lineker “personally used” a firearm (§ 12022.5, subd. (a)). Finally, the information alleged three aggravating circumstances. The jury acquitted Lineker of attempted murder (count 1) and the lesser included offense of attempted voluntary manslaughter (§§ 664/192). It, however, found Lineker guilty on all remaining counts. It also found true the allegations of firearm use as to counts 3 and 5. After the verdict, Lineker waived a jury trial as to the aggravating factors. At sentencing, the trial court found two of the aggravating factors to be true. The court then sentenced Lineker to 12 years in state prison: the midterm of six years on count 3, the midterm of four years on the firearm 1 All statutory references are to the Penal Code. 2 Only count 3 is at issue in this appeal.

2 enhancement as to count 3, one-third of the midterm of two years (eight months) on count 5, and one-third of the midterm of four years (16 months) on the firearm enhancement as to count 5. The court also sentenced Lineker to concurrent terms of two years each on counts 4 and 6 and imposed and stayed, pursuant to section 654, a five-year sentence on count 2 and a six- month sentence on count 7. Finally, the court awarded Lineker 769 days in pre-custody credits and ordered him to pay restitution. Lineker timely appealed.3 B. Evidence at Trial4 1. Prosecution Evidence John and Jane Doe, who are married, lived in a house on a cul-de-sac with their two adult children. Lineker, who lived with his father, mother, and sister, was their neighbor. The driveways of the homes of the Does and Lineker were “kind of diagonal from each other.” On May 2, 2023, Jane Doe was at home with her daughter. At around 1:30 p.m. that day, John Doe, who was driving home in his truck with his son, accidentally ran over a cat in the cul-de-sac. After John Doe parked the truck in his driveway, he spoke with a woman at Lineker’s house and told her that he accidentally ran over the cat. John Doe eventually returned home. Meanwhile, Lineker’s father and sister went outside to pick up the cat and put it in a trash can. According to Lineker’s father, Lineker was “upset” and “agitated” because he would not help Lineker bury the cat.

3 We requested and received supplemental briefing on the question of “[w]hether the ‘continuous course of conduct’ exception alleviates the need for a[ ] unanimity instruction in this case.” 4 Because Lineker only challenges his assault conviction, we only recount the evidence relating to that conviction here.

3 Around 1:50 p.m., John and Jane Doe heard a “loud” “booming” noise. Their daughter told them that Lineker was “bashing” the windows of their truck. Jane Doe looked out the window and saw Lineker walking away from their home with a “bat” in his hand. She then went outside to inspect the damage to the truck. John Doe also went outside and saw the broken windows on the side of the truck closest to his front door. He told Jane Doe to call the police. While she was calling the police, John Doe went to inspect the other side of the truck. While Jane Doe was standing next to the truck and talking on the phone with the police, she saw Lineker exit his home with a black gun. According to Jane Doe, Lineker pointed the “gun up” “towards” her. Jane Doe, who heard multiple shots, “screamed[,] turned around[,] and fell” on the driveway. She “managed to get up and run in the house.” As she was running, Lineker was “still shooting.” She testified that she believed that Lineker was shooting at her. At the start of the shooting, Jane Doe was about two to three car widths away from John Doe. John Doe also saw Lineker standing to the side of his house with a black “rifle.” According to John Doe, who made “direct eye contact” with Lineker, Lineker “was rocking” in a crouched position and pointing the “rifle” in his “direction.” John Doe yelled at Jane Doe “to get in the house, and . . . went around the [truck] to shield” himself from any gunfire. He then heard multiple gunshots. John Doe eventually ran to the side gate of his home and reentered his house. Neither John nor Jane Doe found any bullet holes in their home, truck, or fence. After hearing six or seven gunshots, Lineker’s father went outside and saw Lineker “standing beside his car with the door open” and a black “Glock 4 19” in his hand. Lineker’s father, who had taught Lineker about “gun safety,” asked him “what the hell he was doing.” According to his father, Lineker calmly responded that he was “shooting” “ ‘at’ or ‘towards’ ” “the neighbors.” Lineker then drove away. John Doe 2, who was 14 years old at the time of the trial and lived in the same cul-de-sac as the Does and Lineker, testified that on May 2, 2023, he was standing in an upstairs room in his house and “on [his] phone” when he heard a “loud bang and saw something go right past” him. Glass flew everywhere, and there were bullet holes in two windows in the room where John Doe 2 had been standing. One bullet “hit the ceiling” and there was a bullet hole in a wall. Police, however, were unable to recover the bullets themselves. When Officer Geoffrey Morris arrived at the Does’ house, he saw “damage to the windows” of their truck and glass on the ground by the truck. He also saw “bullet holes on the second story” of the house next to the Does’ house. But he found no bullet holes in the Does’ house, garage door, fence, or truck. After Lineker drove back to the cul-de-sac a little later, he was arrested. He was “calm” and “cooperative.” The police discovered a “black semiautomatic Glock 19 . . . with multiple live rounds of ammunition” in the car that Lineker was driving. The gun was registered to Lineker. The police discovered “[f]ive shell casings and one live round” in the same area near Lineker’s driveway. Casings are ejected when a bullet is fired, and a live round is a bullet that has not been fired. The police acknowledged that it could have missed some casings.

5 2. Defense Evidence Lineker testified in his defense. According to Lineker, he was depressed on May 2, 2023, because he had lost his job in December 2022. On that day, his sister told him that a stray cat that he named “Cindy” and regularly fed had been run over by a neighbor and died. Lineker was “absolutely despondent” and asked his father to help him bury the cat. When his father refused, Lineker buried the cat himself. After his sister told him that John Doe had run over the cat, Lineker used a “pickaxe” to break the windows of the Does’ truck. Lineker broke the windows so John Doe could “experience the same feelings that [he was] then experiencing” and to get John Doe to “slow down . . . and maybe turn down the stereo.” Lineker then returned to his house, left the pickaxe, and got his semiautomatic Glock 19 and ammunition even though he had not shot a gun in about 10 years. After leaving his house with the Glock, Lineker saw the top of John Doe’s head as John Doe was inspecting the truck. Lineker, however, denied seeing Jane Doe in the driveway. As he walked towards his own car, Lineker testified that he calmly “shot” at least five times to let John Doe know that he broke the windows of the truck.5 Lineker claimed that he was aiming at “the side of the hill” “way up behind” John Doe and did not intend to shoot into John Doe 2’s house. He also repeatedly denied pointing his gun at any person. According to Lineker, he did not shoot into the ground because he was worried about ricochets, and he did not shoot into the air because the bullet had “to come down 5 Lineker conceded that he could have fired his gun “at least seven”

times.

6 somewhere.” As he was shooting, Lineker testified that he saw John Doe moving “to the side of the garage . . . at a casual pace.” When his father asked him what he was doing, Lineker testified that he told his father he was “[s]hooting at the neighbors.” (Italics added.) He claimed that he gave a “flippant answer” because he did not have time to tell his father that he was “shooting into the center of the hill over this guy’s head.” Lineker then drove away. Toby Gloekler testified for the defense as an expert in “forensic engineering.” Based on where the two bullets struck the windows of John Doe 2’s house, Gloekler estimated that the bullets would have passed “approximately nine feet” above the head of a person standing where John Doe had been standing during the shooting. And based on where Lineker was likely standing when he fired his gun, Gloekler estimated that Lineker, who was roughly 132 feet away from the truck, aimed his gun at an angle “between four and six degrees” above “horizontal.” Gloekler further testified that if Lineker had been “shooting at a moving target in the” Does’ driveway, Gloekler would have expected to find “strike marks on the [Does’] garage door” or house. Gloekler, however, conceded that shooting at a moving target “approximately 120 to 130 feet away” would be “challenging” especially if the shooter had not shot a gun in 10 years. He also acknowledged that he could not determine “what [Lineker] was aiming at.” DISCUSSION “Assaults upon separate victims, even though perpetrated by a single individual during an indivisible course of conduct, each comprise a separate, punishable offense.” (People v. McNeill (1980) 112 Cal.App.3d 330, 334 (McNeill).) Thus, Lineker could have been charged with two separate assaults with a semiautomatic firearm—one as to John Doe and one as to 7 Jane Doe. The People, however, charged him with a single count of assault on “Jane Doe and John Doe.” Despite this, the jury instructions did not identify the alleged victim or victims of the assault or require that the jury agree unanimously on the victim or victims. Lineker now contends that the trial court erred in failing to do either. He further contends that either instructional error was prejudicial because the jury could have found him guilty of assault even if it did not agree on whether John Doe, Jane Doe, or both were the target or targets of the assault. We disagree. Even if the instructions were erroneous, we find any error harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18 (Chapman).6 A. Additional Facts To instruct the jury on the elements of assault with a semiautomatic firearm, the trial court used CALCRIM No. 875. As relevant here, the court instructed the jury that: “The defendant is charged in Count 3 with assault with semiautomatic firearm, in violation of . . . [s]ection 245(b).· To prove that the defendant is guilty of this crime, the People must prove that: [¶] First, the defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person; [¶] Second, the defendant did that act willfully; [¶] Third, when the defendant acted, he was aware of facts that would lead an objectively reasonable person 6 Accordingly, we need not determine whether: (1) the trial court should have identified the victim(s) in its CALCRIM No. 875 instruction (People v. Velasquez (2012) 211 Cal.App.4th 1170, 1177); (2) a unanimity instruction was required under the continuing course of conduct exception (compare People v. Flores (2007) 157 Cal.App.4th 216, 223 with McNeill, supra, 112 Cal.App.3d at p. 335); and (3) the erroneous failure to give a unanimity instruction is reviewed under Chapman or People v. Watson (1956) 46 Cal.2d 818 (see People v. Matute (2002) 103 Cal.App.4th 1437, 1448 [“the Courts of Appeal are split concerning the proper standard for reviewing prejudice for failure to give a unanimity instruction”]).

8 with knowledge of these facts to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] And fourth, when the defendant acted, he had the present ability to apply force with the semiautomatic firearm.” (Italics added.) The court did not, however, give a unanimity instruction, requiring that all jurors agree on the victim or victims of the assault. The verdict form also did not require the jury to identify the victim or victims of the assault. Instead, it simply asked the jury to determine whether Lineker committed “assault with a semi- automatic firearm, in violation of . . . section 245(b), on or about May 2, 2023, as charged in Count Three of the Information.”7 In her closing argument, the prosecutor explained that “the core of the case is that [Lineker] had a firearm and shot it at (John Doe) and (Jane Doe).” (Italics added.) She emphasized that Lineker must have known that Jane Doe was in the driveway because of her screaming and that Lineker admitted that he told his father that he was “shooting at the neighbors,” and not just one neighbor. She also repeatedly argued that Lineker shot at both John and Jane Doe. Finally, the prosecutor recited the elements of the assault instruction given by the trial court without specifying John Doe, Jane Doe, or both as the victim or victims. Defense counsel countered that Lineker was not shooting at either John or Jane Doe. For example, he argued that Lineker’s “gun was never pointed at either” John or Jane Doe. (Italics added.) In doing so, he stressed that the absence of bullet holes “in the garage, the house windows, the fence or any other places where (John Doe) or (Jane Doe) was standing” precluded a finding that Lineker’s shots “would directly and probably result in the 7 It does not appear that the trial court provided the jury with the information.

9 application of force to someone.” (Italics added.) He also repeatedly cited Lineker’s testimony that he was “aiming at th[e] hillside” and was “not trying to kill [his] neighbors.” (Italics added.) Defense counsel did, however, identify some differences between the evidence as to John and Jane Doe in his closing argument. For example, he stated that John and Jane Doe were “30 to 40 feet away” from each other at the time of the shooting and that two of the shots went “at least nine feet over” John Doe’s head. He also emphasized that John and Jane Doe, who were both under great stress, gave “wildly varying accounts of what they saw when they glanced across the street.” Thus, John Doe’s testimony that Lineker was shooting at him and Jane Doe’s testimony that Lineker was shooting at her should not be credited. Finally, defense counsel argued that Lineker, who admittedly saw John Doe, did not see Jane Doe. B. Analysis Lineker contends that, based on the jury instructions, the jury could have convicted him of assault with a semiautomatic firearm even though jurors may have disagreed on whether John or Jane Doe was the victim of the assault. We disagree. Because Lineker was only charged with one count of assault, the jury could have found him guilty so long as it agreed unanimously on just one victim of that assault. And based on this record, no reasonable jury could have found that Lineker assaulted Jane Doe without finding that he also assaulted John Doe. Stated another way, the jury must have agreed unanimously that Lineker assaulted John Doe. “Harmless error analysis under” Chapman “entails ‘ “examining the entire cause, including the evidence, and considering all relevant circumstances” ’ to determine whether, beyond a reasonable doubt, the error did not contribute to the verdict. [Citation.] If ‘ “ ‘ “[n]o reasonable jury” ’

10 would have found in favor of the defendant on the” valid theory, “given the jury’s actual verdict and the state of the evidence, the error may be found harmless beyond a reasonable doubt.” [Citations.]’ ” (People v. Campbell (2023) 98 Cal.App.5th 350, 372.) Here, there was ample evidence at trial that Lineker shot at John Doe. Corroborating John Doe’s testimony that Lineker shot at him after making “direct eye contact,” Lineker admitted that he saw John Doe before firing. Lineker’s own expert also testified that at least two bullets fired by Lineker passed nine feet over John Doe’s head. By contrast, Jane Doe’s testimony that Lineker shot at her was not corroborated by any other evidence specific to her. Under these circumstances, the jury could not have found that Lineker shot at Jane Doe without finding that he also shot at John Doe. (See People v. Lueth (2012) 206 Cal.App.4th 189, 199 [where the injury caused by one alleged beating was corroborated while the injuries caused by another alleged beating were not, “the failure to give a unanimity instruction was harmless” “beyond a reasonable doubt”].) Thus, the jury, at a minimum, must have unanimously agreed that Lineker assaulted John Doe. To the extent any doubts remain, other evidence and argument at trial remove them. Immediately after firing his gun multiple times, Lineker admitted that he told his father that he was “[s]hooting at the neighbors”— i.e., John Doe and Jane Doe. And in her closing, the prosecutor only argued that Lineker shot at both John Doe and Jane Doe. Meanwhile, Lineker’s only defense to the assault charge was that he was shooting at the “hillside”—and not at John Doe or Jane Doe. By rejecting that defense, the jury must have found that Lineker was shooting at one or both of them. And based on this record, the jury could only have found that Lineker was shooting at John Doe or at both John Doe and Jane Doe. Either way, any instructional error was 11 harmless beyond a reasonable doubt because the jury, which only found Lineker guilty of one count of assault with a semiautomatic firearm, must have agreed unanimously on John Doe as the victim of that assault. Finally, Lineker’s acquittal for attempted murder and voluntary manslaughter does not compel a contrary conclusion. Both of those offenses require a specific intent to kill. (See People v. Mumin (2023) 15 Cal.5th 176, 190 [“attempted murder requires a specific intent to kill,” italics omitted]; People v. Memory (2010) 182 Cal.App.4th 835, 864 [attempted voluntary manslaughter has an “intent to kill requirement”].) By contrast, assault “does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur.” (People v. Williams (2001) 26 Cal.4th 779, 790.) Thus, Lineker’s acquittals have no bearing on whether the jury found that he shot at John Doe, Jane Doe, or both of them. DISPOSITION The judgment is affirmed.

CHOU, J.

WE CONCUR.

JACKSON, P. J. BURNS, J.

A173151/ P. v. Lineker