gno.law

People v. Guerrero CA4/1

California Court of Appeal · D063504 · 2014-02-03 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. SCD238995
Trial judge
David M. Gill
Outcome
affirmed — Affirmed.
Area
criminal
Panel
McINTYRE (author), Judith L. Haller, Patricia D. Benke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:45Z · confidence high

The trial court convicted the defendant of evading a police officer, DUI, and driving with a BAC of .08 or higher, placing him on probation without a unanimity instruction or a section 654 stay on the DUI counts. The Court of Appeal affirmed the judgment, finding the continuous conduct exception applied to the evasion charge and that section 654 did not require a stay because the defendant was placed on probation.

Ruling reviewedStandardThe courtThe model
Failure to give a unanimity instruction on Count 1 (evading a police officer).
“The two segments of the pursuit were sufficiently closely connected in time and place to form one transaction and thus fall under the continuous course of conduct exception to the unanimity instruction rule.”
de novonot reachedagree with court
The court correctly applied the continuous course of conduct exception from People v. Champion and People v. Crandell, noting the acts were substantially identical and closely connected in time. The court also provided an alternative harmless error analysis under Chapman, which is procedurally sound and supported by the record evidence of the single continuous chase.
Failure to stay punishment on Count 2 or Count 3 under Penal Code section 654.
“Probation is an act of grace and clemency designed to allow rehabilitation [citations] and is not within the ambit of the double punishment proscription of . . . § 654.”
de novonot reachedagree with court
The court correctly distinguished People v. Duarte by noting the defendant was placed on probation rather than sentenced to imprisonment. Under People v. Stender and People v. Wittig, section 654's prohibition on multiple punishments does not apply to probationary terms, only to actual sentences imposed upon probation violation.

Authorities

  • relied: People v. Melhado (1998) 60 Cal.App.4th 1529 — Establishes the general rule that a unanimity instruction is required when evidence shows more than one unlawful act supporting a single charged offense.
  • relied: People v. Champion (1995) 9 Cal.4th 879 — Defines the continuous course of conduct exception to the unanimity instruction requirement, applying when acts are substantially identical in nature.
  • relied: People v. Stankewitz (1990) 51 Cal.3d 72 — Supports the continuous conduct rule when a defendant offers essentially the same defense to each of the acts.
  • relied: People v. Crandell (1988) 46 Cal.3d 833 — Supports the finding that closely connected acts in time and place form one transaction for the purpose of the unanimity instruction exception.
  • relied: Chapman v. California (1967) 386 U.S. 18 — Establishes the harmless beyond a reasonable doubt standard for constitutional errors.
  • relied: People v. Watson (1956) 46 Cal.2d 818 — Establishes the substantial likelihood of a different result standard for non-constitutional errors.
  • relied: People v. Smith (2005) 132 Cal.App.4th 1537 — Notes the split of authority regarding which harmless error standard applies to failure to give a unanimity instruction.
  • relied: People v. Deletto (1983) 147 Cal.App.3d 458 — States that failure to give a unanimity instruction is harmless if the record provides no rational basis for the jury to distinguish between the various acts.
  • relied: People v. Thompson (1995) 36 Cal.App.4th 843 — Supports the harmless error conclusion where the jury resolved basic credibility disputes against the defendant.
  • relied: People v. Harris (1994) 9 Cal.4th 407 — Directs courts to look to the evidence considered by the jury under the instructions given when assessing the prejudicial impact of an error.
  • relied: People v. Duarte (1984) 161 Cal.App.3d 438 — Expressed concern that multiple convictions from a single act could be used to enhance future punishment, leading to a stay of the conviction's use as a prior.
  • relied: People v. Stender (1975) 47 Cal.App.3d 413 — Holds that probation is an act of grace and clemency not within the ambit of the double punishment proscription of section 654.
  • relied: People v. Wittig (1984) 158 Cal.App.3d 124 — Holds that the multiple punishment prohibition of section 654 only becomes relevant in the event of a probation violation.

The appellate opinion: sound — The opinion is sound because it correctly applies the continuous conduct exception to the unanimity instruction requirement and properly distinguishes the probation context from the imprisonment context in section 654 analysis. The court provides a robust alternative harmless error analysis that reinforces the primary holding.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

A San Diego jury convicted Christian Guerrero of evading a police officer with reckless driving, driving under the influence, and driving with a blood alcohol content of .08 or higher; the trial court gave no unanimity instruction on the evading count and placed him on five years' probation on the two DUI counts without staying either under Penal Code section 654. The Court of Appeal affirmed, holding the two pursuit segments were a continuous course of conduct so no unanimity instruction was required (and any error was harmless beyond a reasonable doubt), and that section 654 does not require a stay where the defendant received probation.

Ruling reviewedStandardThe courtThe model
Failure to give a sua sponte unanimity instruction on count 1 (evading a police officer with reckless driving) where evidence showed two pursuit segments by different officer teams
“The two segments of the pursuit were sufficiently closely connected in time and place to form one transaction and thus fall under the continuous course of conduct exception to the unanimity instruction rule.”
de novocorrectagree with court
The court did not expressly state a standard, but whether a sua sponte instruction was required is a legal question. The continuous-course-of-conduct conclusion is defensible: a single flight from police over roughly 39 minutes, interrupted only when the first unit broke off for safety, with the same vehicle and driver identified throughout. There is tension, however, in the court's own account: it says Guerrero asserted a different defense to each segment (not the driver in the first; could not hear officers in the second), which undercuts the Stankewitz 'same defense' rationale and arguably gave jurors a basis to distinguish the acts. The court did not confront that tension or cite People v. Russo, the leading Supreme Court formulation of when the instruction is required. The alternative Chapman harmlessness holding is nonetheless well supported: two officers identified Guerrero face-to-face in daylight during the first segment, he was alone in the car when stopped, and the hearing defense rested on a sister impeached by her prior inconsistent statement. The result is correct even if the first rationale is thin.
Refusal to stay punishment on count 2 or count 3 under Penal Code section 654 where the court placed defendant on probation on both DUI counts
“The multiple punishment prohibition of section 654 only becomes relevant in the event of a probation violation.”
de novocorrectagree with court
The applicability of section 654 to a grant of probation is a question of law, and the court applied the settled Stender/Wittig line holding that probation is not 'punishment' within section 654 so a stay is not required at the probation stage. Guerrero's Duarte-based concern about future recidivist enhancement was addressed reasonably: Duarte involved an actual prison sentence with one count stayed, and the court noted Guerrero can raise the single-act argument if and when both convictions are later invoked as priors. The reasoning is consistent with the cited authority and the result follows.

Authorities

  • relied: People v. Melhado (1998) 60 Cal.App.4th 1529 — When evidence shows more than one act that could support a single charged offense, the prosecution must elect or the court must sua sponte give a unanimity instruction.
  • relied: People v. Champion (1995) 9 Cal.4th 879 — No unanimity instruction is required when acts are substantially identical in nature so that any juror believing one act occurred would believe all occurred.
  • relied: People v. Stankewitz (1990) 51 Cal.3d 72 — Continuous-conduct exception applies where defendant offers essentially the same defense to each act and there is no reasonable basis for jurors to distinguish between them.
  • relied: People v. Crandell (1988) 46 Cal.3d 833 — Acts closely connected in time and place so as to form one transaction fall within the continuous-course-of-conduct exception to the unanimity requirement.
  • relied: People v. Smith (2005) 132 Cal.App.4th 1537 — There is a split of authority on whether Chapman or Watson governs prejudice from failure to give a unanimity instruction.
  • relied: People v. Deletto (1983) 147 Cal.App.3d 458 — Failure to give a unanimity instruction is harmless where the record provides no rational basis for the jury to distinguish between the acts and the jury must have believed defendant committed all acts if it believed he committed any.
  • relied: People v. Thompson (1995) 36 Cal.App.4th 843 — Where the jury resolved the basic credibility dispute against the defendant and would have convicted on any of the acts shown, omission of the unanimity instruction is harmless.
  • relied: People v. Harris (1994) 9 Cal.4th 407 — Under Chapman the reviewing court looks to the evidence considered by the jury under the instructions given to assess harmlessness.
  • relied: Chapman v. California (1967) 386 U.S. 18 — Federal constitutional error requires reversal unless harmless beyond a reasonable doubt.
  • relied: People v. Watson (1956) 46 Cal.2d 818 — State-law error is reversible only if it is reasonably probable a result more favorable to defendant would have been reached absent the error.
  • relied: People v. Duarte (1984) 161 Cal.App.3d 438 — Where two DUI convictions arise from a single act of driving and one sentence is stayed under section 654, use of the stayed conviction as a prior for penal and administrative purposes may also be stayed to avoid double recidivist enhancement.
  • relied: People v. Stender (1975) 47 Cal.App.3d 413 — Probation is an act of grace and clemency designed to allow rehabilitation and is not within the double-punishment proscription of section 654.
  • relied: People v. Wittig (1984) 158 Cal.App.3d 124 — Section 654's multiple-punishment bar becomes relevant to a probationer only upon a probation violation and imposition of sentence.
  • missed: People v. Russo (2001) 25 Cal.4th 1124 — A unanimity instruction is required sua sponte when the evidence presents a genuine possibility that jurors could disagree about which discrete act the defendant committed yet still convict; it is not required where disagreement concerns only the exact way a single crime was committed.

The appellate opinion: sound with gaps — The result is defensible and the harmless-error analysis under the stricter Chapman standard is well grounded in the record of face-to-face officer identifications and the impeached hearing-impairment defense, and the section 654 holding tracks settled authority that probation is not punishment. The opinion, however, does not reconcile its continuous-course-of-conduct holding with its own statement that Guerrero raised distinct defenses to the two pursuit segments, and it omits the Supreme Court's controlling Russo formulation of when a unanimity instruction is required.

How this analysis was made · dispute it

Opinion

Filed 2/3/14 P. v. Guerrero CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D063504

Plaintiff and Respondent, v. (Super. Ct. No. SCD238995)

CHRISTIAN GUERRERO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, David M.

Gill, Judge. Affirmed.

James R. Bostwick, Jr., under appointment by the Court of Appeal for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kimberly A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Christian Guerrero of evading a police officer with reckless driving (count 1), driving under the influence of alcohol (count 2), and driving with a blood alcohol content of .08 percent or higher (count 3). He appeals, contending: (1) his conviction on count 1 should be reversed because the trial court failed to give a unanimity instruction; and (2) the trial court should have stayed his sentence on either count 2 or count 3 under Penal Code section 654. (Undesignated statutory references are to the Penal Code.) We reject Guerrero's arguments and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Around 5:43 p.m. on an evening in January 2012, Officers Jacob Resch and Errick Barnes observed Guerrero making an illegal U-turn. The officers followed Guerrero's vehicle and attempted to initiate a traffic stop. Guerrero did not stop and a high-speed chase ensued. During the chase, Guerrero nearly struck a vehicle pulling out of a parking spot, failed to stop at stop signs and lights, accelerated to over 100 miles per hour, and swerved into oncoming lanes of traffic. Officers Resch and Barnes terminated their pursuit because it was unsafe for them and the general public. The officers began to make their way to the address of the registered owner of the vehicle.

Around the same time, Officer Trevor Riley and Officer Tristan Gonzales, who were part of the San Diego Police Department Airborne Law Enforcement (ABLE)

helicopter unit, also headed toward the address of the vehicle's owner. As they were on their way to that address, they received information that other patrol officers had spotted the vehicle in southeast San Diego. Thus, the ABLE officers responded toward the location of the vehicle.

Officers Jeffrey Skiba and Miguel Garcia were on patrol in southeast San Diego and heard the radio call regarding the vehicle Officers Resch and Barnes were pursuing.

2 Around 6:05 p.m., Officers Skiba and Garcia spotted the vehicle and attempted to stop it.

Guerrero sped up and drove away from the officers. Officers Skiba and Garcia continued to follow Guerrero as he drove erratically. During that time, the ABLE officers were also following Guerrero's vehicle and filming the pursuit. When Guerrero entered a freeway on-ramp, Officers Skiba and Garcia lost sight of him; however, the ABLE officers maintained visual contact.

Guerrero's vehicle eventually broke down in the middle of an intersection. Two officers who arrived at the scene detained Guerrero and then turned over custody to Officers Resch and Barnes who transported Guerrero to police headquarters. Guerrero refused breath and blood tests. Thus, he was subjected to a forced blood draw. Guerrero's blood measured a blood alcohol concentration of .16 percent.

Guerrero's sister testified that he had trouble hearing. However, a district attorney investigator who had interviewed Guerrero's sister the day before, testified that she stated Guerrero had no problems hearing. Instead, Guerrero's sister had described his hearing as "selective hearing."

DISCUSSION

I. Unanimity Instruction Guerrero argues that his conviction on count 1 for evading a police officer with reckless driving should be reversed because the court failed to give the jury a unanimity instruction. Specifically, he contends the instruction was required because there was evidence of two possible incidents of evading a police officer, one involving the pursuit by Officers Resch and Barnes and the other involving the pursuit by Officers Skiba and 3 Garcia. He claims the jurors may not have agreed as to which of those incidents constituted the act of evading officers. We reject this argument.

A defendant's constitutional right to a unanimous jury verdict requires that when the evidence shows more than one unlawful act that could support a single charged offense, the prosecution must either elect which act to rely upon or the trial court must sua sponte give a unanimity instruction telling the jurors they must unanimously agree which act constituted the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The unanimity instruction is designed to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agreed the defendant committed. (Ibid.)

No unanimity instruction is required, however, when the offense involves a continuous course of conduct; i.e., when the acts are "substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place[.]"

(People v. Champion (1995) 9 Cal.4th 879, 932, internal quotes omitted.) The continuous conduct rule also applies when a defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for jurors to distinguish between them. (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)

Here, the court was not required to give a unanimity instruction. The evidence showed that approximately 39 minutes elapsed between the time Guerrero made an illegal U-turn that initiated the officers' pursuit and the time that he was taken into custody. The pursuit was only interrupted because Guerrero entered a freeway with heavy traffic and Officers Resch and Barnes determined it was unsafe to proceed. The chase, however, 4 picked up again less than 20 minutes later when Officers Skiba and Garcia spotted Guerrero's vehicle. During both portions of the chase, Guerrero drove erratically and sped away from officers pursuing him. The two segments of the pursuit were sufficiently closely connected in time and place to form one transaction and thus fall under the continuous course of conduct exception to the unanimity instruction rule. (People v. Crandell (1988) 46 Cal.3d 833, 875.)

Even if were to conclude that the unanimity instruction should have been given in this case, the court's failure to give the instruction was not prejudicial. There is a split of authority on whether the standard of prejudicial error is that standard outlined in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) or that outlined in People v. Watson (1956) 46 Cal.2d 818. (People v. Smith (2005) 132 Cal.App.4th 1537, 1545.) Applying the more stringent standard of Chapman, we conclude the error in this case was harmless beyond a reasonable doubt. Failure to give a unanimity instruction is harmless if the record provides no rational basis for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that the defendant committed all acts if he or she committed any. (People v. Deletto (1983) 147 Cal.App.3d 458, 473.) "Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless." (People v. Thompson (1995) 36 Cal.App.4th 843, 853.) "[U]nder the mandate of Chapman . . . we must ultimately look to the evidence considered by defendant's jury under the instructions given in assessing the 5 prejudicial impact or harmless nature of the error." (People v. Harris (1994) 9 Cal.4th 407, 428.)

Guerrero's two attempts to evade police officers were so closely connected in time and place and substantially identical in nature such that any error in failing to give the unanimity instruction was harmless. The evidence supporting each act was nearly the same. The officers testified that during both segments, Guerrero drove evasively and sped away when they attempted to stop him. Officers identified the same vehicle and driver during both segments.

Guerrero's defense that he was not the driver during the first segment and could not hear officers during the second segment is not supported by the record. To the contrary, Officer Barnes stated that he saw Guerrero "face-to-face" during the first segment of the pursuit and identified him as the driver. Officer Resch also identified Guerrero as the driver and stated that the area was "fairly well lit by sunlight" when he first observed the vehicle. Guerrero was the only person in the vehicle when it was finally stopped after the second segment of the chase. Additionally, the only evidence supporting Guerrero's hearing impairment defense came from his sister who had previously stated he did not have a hearing problem. The hearing impairment defense was also contradicted by testimony from officers who stated that based on Guerrero's reactions, they did not believe he was deaf.

On this record, we conclude any error in failing to give a unanimity instruction was harmless beyond a reasonable doubt.

6 II. Section 654 On count 2 and count 3 for driving under the influence of alcohol and driving with a blood alcohol content of .08 percent or higher, respectively, the trial court placed Guerrero on probation for a period of five years. Guerrero argues the trial court should have stayed his punishment on one of those counts under section 654. Specifically, he contends a stay is required because both convictions could potentially be used to enhance a future driving under the influence charge. We reject Guerrero's argument.

Guerrero bases his argument on People v. Duarte (1984) 161 Cal.App.3d 438 (Duarte). In that case, the defendant was convicted of driving under the influence and causing bodily injury and driving with a blood alcohol level of .10 or more and causing bodily injury. (Id. at p. 440.) Both convictions arose from a single act of drunk driving.

(Ibid.) The Court of Appeal affirmed the convictions, but expressed concern that although defendant's sentence on the second conviction was stayed under section 654, there was a risk that both convictions might be used to enhance future punishment. (Duarte, supra, at p. 447.) The court reasoned: "Having suffered two convictions and one punishment, defendant remains exposed to the use of the two convictions to enhance future punishment.

The Vehicle Code contains an increasing number of sections which penalize recidivism.

These sections ordinarily refer to prior 'convictions' without qualifying them to exclude multiple convictions arising from a single driving occasion. By only staying punishment on one of the two convictions, another court at another time may have to determine whether the defendant has one or two 'priors[.]' " (Id. at p. 447.) To avoid multiple enhancements based on a single act of illegal driving, the court modified the judgment by 7 ordering that "the use of the [second] conviction . . . as a prior conviction for penal and administrative purposes, be stayed. . . ." (Id. at p. 448.)

While we agree with the basic premise of Duarte, we disagree that it is necessary or appropriate in this case to stay the punishment on count 2 or count 3 under section 654.

Unlike the defendant in Duarte, Guerrero received probation. "Probation is an act of grace and clemency designed to allow rehabilitation [citations] and is not within the ambit of the double punishment proscription of . . . § 654." (People v. Stender (1975) 47 Cal.App.3d 413, 425.) The multiple punishment prohibition of section 654 only becomes relevant in the event of a probation violation. (People v. Wittig (1984) 158 Cal.App.3d 124, 137.)

If Guerrero is convicted of a future offense and his current offenses are utilized to enhance his punishment, he can assert an argument that both convictions cannot be used at that time.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

Cites, in this corpus