Filed 11/3/22 P. v. Rivota 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D079634

Plaintiff and Respondent,

v. (Super. Ct. No. FVI18003040)

ALBERT RIVOTA III,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino County, Tony Raphael, Judge. Affirmed. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Senior Assistant Attorney General, Arlene A. Sevidal,

Randall D. Einhorn, and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff

and Respondent. A jury convicted Albert Rivota III of attempted premeditated murder (Pen. Code1,

§§ 664/187, subd. (a), count 1) infliction of injury upon a spouse or cohabitant (§ 273.5,

subd. (a), count 2). He contends on appeal that both counts must be reversed because the

trial court failed to instruct the jury with a unanimity instruction and did not require the

prosecutor to elect the events comprising either count. The People contend the trial court

did not have a sua sponte duty to instruct the jury on unanimity but, even if the court erred,

the error was invited or harmless. We conclude the trial court erred by not giving the

instruction, but the error was harmless beyond a reasonable doubt. We, therefore, affirm

the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Evidence Regarding the Charged Crimes

On October 14, 2018, Lisa E. witnessed Rivota and the victim arguing in the middle

of the street. Rivota and the victim yelled in each other’s faces and exchanged slaps and

punches. At some point, Rivota and the victim separated, and the victim went to the home

of Thomas V., an elderly neighbor.

Shortly after, a black SUV pulled up at the side of Thomas’s house. The victim

approached the vehicle and tried to get inside. Rivota rushed the van angrily, and after he

spoke with the driver and passenger, the SUV drove off. The victim tried to run away, but

Rivota immediately grabbed her and started beating her with punches and kicks. The

victim freed herself and ran up the stairs to Thomas’s house.

1 Further statutory references are to the Penal Code. 2 The victim then went into the bathroom in Thomas’s house to get cleaned up.

Thomas noticed that the left side of the victim’s head was bloody. After four to five

minutes, the victim walked out the front door again. Rivota, who had been waiting for the

victim at the front door, hit her in the face with his fist. After the victim fell to the ground,

Rivota started kicking, hitting, and stabbing the victim with a knife. Rivota stabbed the

victim several times. Thomas tried to stop Rivota by swinging a baseball bat at him.

Thomas’s and Lisa’s testimony differed slightly about what happened next. Thomas

testified that Rivota and the victim ran into an alley and Rivota continued stabbing her.

Thomas also said someone other than himself helped the victim back into his house. Lisa,

on the other hand, testified that both Thomas and Rivota’s sister showed up and helped the

victim into Thomas’s house and away from Rivota. Thomas testified that Rivota remained

at the scene afterward , but Lisa testified that Rivota fled.

B. Conferences Regarding Jury Instructions

During a jury instruction conference, the court and counsel discussed a proposed

unanimity instruction. The court observed that the prosecution alleged “three different

rounds of violence in this case.” Those incidents included: (1) Rivota and the victim’s

“mutual combat” in the middle of the street; (2) Rivota’s subsequent “beating” of the victim

after the SUV left; and (3) Rivota’s eventual “stabbing” of the victim with a knife after she

had cleaned up her wounds in Thomas’s house. In the court’s view, there was “some sort

of a temporal separation” and an “escalation” of the violence between the second and third

incidents.

3 Based on this narrative, the court saw no need for a unanimity instruction on count

1 for attempted murder. The court reasoned that a unanimity instruction is not required

when the acts are “so closely connected as to form part of one transaction.” Regarding

count 2 for corporal injury, on the other hand, the court was inclined to give a unanimity

instruction because there potentially was “a little bit of a separation” between two acts

giving rise to the crime: (1) the mutual combat in the middle of the street; and (2) the

“serious assault-type conduct” occurring near the SUV. The court noted, however, that

this approach would require telling the jury the basis for the two separately charged crimes,

or else the jury might consider conduct before the stabbing for the attempted murder.

The prosecutor objected to the unanimity instruction, saying the mutual combat in

the street was “just kind of a precursor” for the actual injury for count 2 that “occurred at

the SUV.” The prosecutor further argued that the two violent acts by the SUV and the

home “are completely separate.” The court noted that the prosecutor’s position differed

from her prior position in response to Rivota’s section 1118.1 motion for acquittal.

Nevertheless, the court agreed a unanimity instruction may not be needed for count 2 either,

so long as the jury was told the specific basis for count 2.

Defense counsel responded that a unanimity instruction would be helpful to the jury.

However, the defense requested to remove language “delineating the specific area of

conduct and where it applies as far as the counts,” arguing that this risks “guiding the jury

into deciding and understanding, interpreting the evidence and testimony that they do

hear.” The court acknowledged the defense’s concern and again considered instructing on

unanimity for the two potential factual bases for count 2 (the mutual combat and the beating

4 near the SUV). But because the Information did not elect the specific conduct giving rise

to the different counts, the court maintained it needed to instruct the jury of the

“demarcation” arising from the “temporal separation” between the conduct alleged for

count 1 versus the conduct for count 2.

During a recess, the court discussed the unanimity instruction further in an off-the-

record chambers conference. After returning from the recess, the court summarized the

prosecutor’s position that the entire incident was “a continuous course of conduct in

support of both counts.” Therefore, the prosecutor believed there would be “no need for

the court to provide the jury with a temporal demarcation as to what conduct supports each

count,” nor any “need to provide a unanimity instruction.” The prosecutor confirmed this

was her position. Defense counsel agreed. Accordingly, the court decided not to instruct

on unanimity. The parties then stipulated to the instructions the court intended to give,

without waiving any prior objections made on the record.

The court instructed the jury without a unanimity instruction. Just before counsel

made their closing arguments, the court held a final discussion with counsel to confirm

their agreement regarding the unanimity instruction. The court reiterated that it would not

instruct on unanimity, as neither side requested it given the People’s position that there was

“a single transaction or a continuous course of conduct that formed the basis for the two

counts.” Both defense counsel and the prosecutor expressly agreed with the court’s

decision.

5

DISCUSSION

Rivota contends the trial court prejudicially erred in failing to give the unanimity

instruction under CALCRIM No. 3500 because there “was a danger that the jury may

amalgamate disparate acts in order to convict the defendant of an offense charged.” He

specifically argues that with no unanimity instruction, and no ruling from the court that the

prosecutor needed to elect, the court improperly allowed the prosecutor to argue that every

segment of the events—including the initial “mutual combat” confrontation in the street—

could support the charge for attempted premeditated murder. The People claim that Rivota

invited any error because he agreed the unanimity instruction need not be given. The

People further argue that, in any event, Rivota’s claim has no merit or was harmless.

Although we find Rivota’s contention reviewable, we conclude any error by the trial court

was harmless.

A. Rivota Did Not Invite Error

Where a party’s conduct “induces the commission of error,” the doctrine of invited

error estops the party from asserting the error as a ground for reversal. (Norgart v. Upjohn

Co. (1999) 21 Cal.4th 383, 403.) The purpose of the invited error doctrine “is to prevent a

party from misleading the trial court and then profiting therefrom in the appellate court.”

(Ibid.) Invited error may preclude an argument that an instruction was erroneously omitted

if defense counsel’s conduct shows he or she made a “conscious, deliberate tactical choice

to forego a particular instruction.” (People v. Wader (1993) 5 Cal.4th 610, 657–658

(internal quotation omitted).)

6 However, because important rights of the accused are at stake, it must be clear that

counsel acted for tactical reasons and not out of ignorance or mistake. (People v.

Wickersham (1982) 32 Cal.3d 307, 330.) Counsel’s “mere agreement that the instruction

was not relevant” does not preclude a defendant from raising the issue on appeal, as a trial

court should give the instruction sua sponte where the circumstances of the case so dictate.

(People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8.)

Although defense counsel here initially objected to a modified portion of the

proposed unanimity instruction, defense counsel otherwise believed that an unmodified

unanimity instruction would be “helpful” for count 2. The People also correctly note that

defense counsel consciously chose to forgo the unanimity instruction. But unlike in the

cases the People rely on—People v. Lara (1994) 30 Cal.App.4th 658, 673 and People v.

Hughes (2002) 27 Cal.4th 287, 345-346—the instruction was not withdrawn at Rivota’s

behest. Instead, the defense counsel was willing to forgo the instruction because the

prosecutor had just explained her position that both counts were based on a single

continuous course of conduct. This new position led the court and both parties to agree

that the unanimity instruction would not be necessary. Such “mere agreement” by itself

does not reflect the type of conscious and deliberate tactical choice to forego the unanimity

instruction needed to conclude that defense counsel invited the alleged instructional error.

(See People. v. Carrera, supra, 49 Cal.3d at p. 311, fn. 8.) Accordingly, the issue is

reviewable on appeal.

7 B. The Trial Court Erred by Failing to Give a Unanimity Instruction Sua Sponte

Rivota argues the trial court committed reversible error when it failed to deliver a

unanimity instruction to the jury. Specifically, he asserts a unanimity instruction was

required because the jury was required to agree on which of three separately alleged acts

of violent conduct gave rise to the alleged counts. “[A]ssertions of instructional error are

reviewed de novo.” (People v. Shaw (2002) 97 Cal.App.4th 833, 838.) Whether or not the

trial court should have given a “particular instruction in any particular case entails the

resolution of a mixed question of law and fact,” which is “predominantly legal.” (People

v. Waidla (2000) 22 Cal.4th 690, 733.) As such, it should be examined without deference.

(Ibid.)

A jury verdict must be unanimous in a criminal case. (Cal. Const., art. I, § 16;

People v. Russo (2001) 25 Cal.4th 1124, 1132.) “Additionally, the jury must agree

unanimously the defendant is guilty of a specific crime.” (Russo, supra, at p. 1132.)

Therefore, 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. (Ibid.) The unanimity requirement is designed “to eliminate the danger that the

defendant will be convicted even though there is no single offense which all the jurors

agree the defendant committed.” (Ibid.) On the other hand, where the evidence shows

only a single discrete crime but leaves room for disagreement as to exactly how that crime

was committed or what the defendant’s precise role was, the jury need not unanimously

8 agree on the basis or the “theory” whereby the defendant is guilty. (See Ibid.; People v.

Jenkins (2000) 22 Cal.4th 900, 1024-1026.)

Here, there was a risk that the jury could divide on multiple discrete crimes for either

of the two counts. The witnesses at trial testified they saw Rivota commit three separate

violent acts toward the victim: (1) mutual combat between Rivota and the victim involving

slapping and punching in the middle of the street; (2) Rivota’s beating the victim in an

alley where an SUV had been; and (3) Rivota’s stabbing the victim outside of Thomas V.’s

house. The Information did not select the particular acts upon which it relied for the

different counts.

Therefore, based on the evidentiary record, there was a risk the jury could split on

count 1 for attempted murder between some jurors finding Rivota committed the second

act only and some jurors finding he committed the third act only. These were discrete acts,

as even the prosecutor described a “lengthy” period of time between the two. Concerned

about the possibility that the jury would conflate the two acts, the court warned before

closing arguments that they “have to tell the jury what’s the basis of each crime,” or else

the jury “could consider conduct before by the SUV for the attempted murder.”

Likewise, the jury could have split on count 2 for infliction of corporal injury

between the first and the second acts.2 In fact, the court initially observed that the first two

2 Prior to instructing the jury, the court dismissed the “use of a deadly or dangerous weapon” allegation from count 2 pursuant to Rivota’s motion to dismiss under section 1118.1. Therefore, count 2 could not be based on the third act (the stabbing incident), which was the only incident involving a knife. 9 acts were sufficiently separate in time that a unanimity instruction would be warranted for

count 2. Although the prosecutor assured the court in chambers that the People were not

relying on the “mutual combat in the street” incident as part of its case for count 2, the

prosecutor ultimately highlighted this incident during her closing arguments. Further, the

prosecutor’s closing arguments repeatedly referenced the stabbing as a basis for count 2.

Although the court ultimately declined to give the unanimity instruction based on

an agreement between counsel that the entire event was a continuous-course-of-conduct in

support of both counts, this does not mean there was no error in the instructions. The court

should instruct on unanimity when the circumstances so warrant. (People v. Davis (2005)

36 Cal.4th 510, 561.) Moreover, the “continuous course of conduct” principle is not an

exception to the requirement of a unanimity instruction. (People v. Lueth (2012) 206

Cal.App.4th 189, 196.) Instead, when this principle applies, a unanimity instruction may

still be required, but the failure to give one may be harmless. (Ibid.) Accordingly, and

notwithstanding the parties’ agreement regarding the continuous course of conduct, the

court erred in this case by failing to give a unanimity instruction.

C. The Court’s Error in Failing to Give a Unanimity Instruction Was Harmless

Failure to give a unanimity instruction is governed by the harmless error standard

of Chapman v. California (1967) 386 U.S. 18), which requires the error to be harmless

beyond a reasonable doubt. (People v. Deletto (1983) 147 Cal.App.3d 458, 471.) “Where

the record provides no rational basis, by way of argument or evidence, for the jury to

distinguish between the various acts, and the jury must have believed beyond a reasonable

10 doubt that defendant committed all acts if he committed any, the failure to give a unanimity

instruction is harmless.” (People v. Thompson (1995) 36 Cal.App.4th 843, 853.)

The failure to give a unanimity instruction is harmless where the defendant offered

the same defense to all criminal acts, and “the jury’s verdict implies that it did not believe

the only defense offered.” (People. v. Hernandez (2013) 217 Cal.App.4th 559, 577.) For

example, in People v. Wolfe (2003) 114 Cal.App.4th 177, a failure to give a unanimity

instruction was harmless where the defendant presented “a unitary defense” that he had no

dominion or control over any of the firearms at issue. (Id. at p. 188.) By contrast, in People

v. Diedrich (1982) 31 Cal.3d 263, a failure to instruct on unanimity was prejudicial,

because the defendant made a “simple denial” for one count but “explained” the other

count. (Id. at p. 283.)

The error in this case was harmless beyond a reasonable doubt because Rivota

offered the same defense to both charges: he was not the one who committed the crimes.

Specifically, Rivota argued someone from the SUV beat and stabbed the victim. On

appeal, Rivota points out that defense counsel attacked the credibility of the different

witnesses for each act in different ways, but this makes no difference. While it is true that

defense counsel treated Lisa E.’s identification of Rivota as a fabrication and attributed

Thomas V.’s identification of Rivota as a mistake during the chaos, both arguments were

designed to deny that Rivota committed the acts at all. The verdict shows the jury believed

that Rivota committed at least one violent act during incident, which indicates that the jury

“resolved the basic credibility dispute against the defendant.” (See People. v. Thompson,

supra, 36 Cal.App.4th at p. 853.)

11 Rivota’s other arguments regarding prejudice are not persuasive. Rivota refers to

various “extraneous but prejudicial matters” in the record, such as the portrayal of the death

of “the heroic old man,” various “lurid statements” attributed to Rivota which Rivota

claims are embellishments, and the prosecutor’s framing the case as “a morality play”

where the victim finally “fought back” against regular beatings by Rivota. But Rivota cites

no authorities—nor are we aware of any authorities—suggesting that such statements and

characterizations are unduly prejudicial. Rivota also points to the length of the jury

deliberations and requests to rehear testimony as indications that the jury was conflicted.

(See People v. Filson (1994) 22 Cal.App.4th 1841, 1852; People. v. Thompson, supra, 36

Cal.App.4th at p. 854.) But the jury’s lengthy deliberations and requesting to rehear

testimony simply suggests the jury acted dutifully and diligently. Nothing in the record

suggests a conflict among the jurors. By contrast, the jury in Filson reported a deadlock

on two out of three counts, and the jury in Thompson initially reported an impasse on all

counts. (Filson, supra, at pp. 1847-1848; Thompson, supra, at pp. 849-850.)

Accordingly, there was no rational basis for the jury to distinguish between the

alleged acts. The jury’s verdict implies that it did not believe the unitary defense Rivota

offered for both counts that he did not commit the crime. Therefore, we conclude any error

in failing to give a unanimity instruction was harmless.

12

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

DO, J.

BUCHANAN, J.

13