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Name: People v. Hamlin
Case #: C053982
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 02/09/2009

Torture is a crime that can be committed by a course of conduct and where such is the case, there is no election/unanimity requirement. Appellant was convicted at jury trial of numerous offenses including torture, criminal threats, corporal injury to his spouse, and misdemeanor child abuse, and sentenced to life in prison for the torture offense and upper terms in prison for the other felony offenses. Evidence was presented at trial that appellant had abused his wife since 1999, with the abuse escalating to daily physical abuse by 2003. The prosecution’s theory for the torture offense was that it was committed by a course of conduct occurring between June 2003 and February 2004. Where the evidence establishes several acts that could constitute the charged offense, generally, the state must either select the particular act that it relied on, or the jury must be instructed that they must unanimously agree on the particular act. The exception to this rule is where the acts are so closely connected that they form part of one and the same transaction or offense. For torture, the unlawful goal is the infliction of great bodily injury with the intent to cause severe pain for the specified purpose. Where the cumulative result of a course of conduct is great bodily injury, and the requisite intent can be found, the crime of torture is committed under this course-of-conduct exception and no election or unanimity is required. In determining if a communication is a criminal threat, the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal , unconditional, and immediate, so as to convey to the victim gravity of purpose and immediate prospect of execution, and is not dependant on words alone. Appellant argued there was insufficient evidence to uphold the criminal threats conviction, because part of the tape recording the threat was inaudible, and so it could not be established that the words were unequivocal. The court found the jury did not need to know the exact words of the condition appellant placed on the threat because the context and surrounding circumstances conveyed it was unequivocal. Prosecution for a misdemeanor offense, with specified exceptions, must commence within one year after commission of the offense but time is tolled during prosecution of the same person for the same conduct in a California court. If the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute at any time; otherwise, if the pleadings allege facts to avoid the bar of statute of limitations, and defendant does not raise the issue at trial, he cannot raise it for the first time on appeal. The upper-term sentences were not based on aggravating circumstances found to exist by the jury, admitted by defendant, or justified by defendant’s record, and remanded for resentencing. The aggravating factors relied on by the court were: inducing others, including his children, to participate; the crime involved planning and sophistication; appellant took advantage of a position of trust, and he engaged in violent conduct, indicating a danger to society. The court rejected respondent’s claim of harmless error and remanded for resentencing pursuant to People v. Sandoval (2007) 41 Cal.4th 825.