People v. Salvato

Citation234 Cal.App.3d 872,285 Cal.Rptr. 837
Decision Date26 September 1991
Docket NumberNo. A049392,A049392
CourtCalifornia Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Angelo SALVATO, Defendant and Appellant.

David McNeil Morse, under appointment by the Court of Appeal, San Francisco, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald E. Niver, Laurence K. Sullivan, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

LOW, Presiding Justice.

This case presents the question of whether the defendant in a criminal case is entitled, upon demand at the start of trial, to have the prosecution elect which of several distinct acts is relied upon for each individual charge. We hold that he or she is, generally, entitled to an election upon demand, and that the court's refusal to require one is not in all cases cured by the giving of a jury instruction which requires unanimous agreement on the particular act supporting the conviction.

Michael Angelo Salvato was convicted in a jury trial of dissuading a witness by threat of violence (Pen.Code, § 136.1, subd. (c)(1)), 1 terrorist threats (§ 422), obtaining signatures by extortionate means (§ 522) and sending extortionate letters (§ 523). The victim of these offenses was Mary Anne Crawford, whose marriage to Salvato was dissolved during the time period of the offenses.

The prosecution evidence generally showed that Salvato made numerous threats against Crawford directly and through her attorneys in an effort to dissuade her from seeking her share of the community property. Salvato's primary defense was that, depressed and distraught, he had sought only to humiliate Crawford and to shame her into reconciling; he did not intend to extort property from her or put her in actual fear of violence.

Salvato and Crawford were married in 1977. In 1986, Salvato, a longshoreman, suffered a temporarily disabling back injury for which he underwent surgery. In January 1987, he had a heart attack, and became seriously depressed. By October he was able to return to work but, according to Crawford, remained depressed and uncomfortable with other people.

Crawford moved out in December 1987. She testified to a series of threatening contacts beginning on January 20, 1988. On that day Salvato said, in a telephone conversation, that if Crawford came after the community property he would "take [her] out." On January 25, Crawford, through her attorney, Michael Dufficy, filed a petition for dissolution, in which the question of community property was reserved for future determination; Crawford was undecided whether to seek a division of the property. On January 26, Crawford received a telephone call from a therapist Salvato had been consulting, Kevin Heaney. Heaney said that Salvato had expressed an intent to kill Crawford, and that Heaney believed the threat was serious. On the same day Salvato's sister told her that Salvato said he would kill her and that he had a gun. On February 1, a friend relayed another threat by Salvato to kill Crawford and himself.

On February 2, 1988, Crawford, through Dufficy, obtained a temporary restraining order against Salvato. On February 3, Salvato left a box of Crawford's clothing, with tomato juice poured over it, on her doorstep. On February 5, he drove by her apartment and left messages on her answering machine. On February 8, Dufficy relayed to Crawford another threat by Salvato to kill her if she tried to get any of the community property. On February 18 and 19, he left telephone messages on Crawford's machine saying there would be "bad trouble" if she did not give up her part of the property. On February 19, Crawford signed a waiver of her interest in the community property. She also told the District Attorney's office that she did not want to press charges for violations of the restraining order. She took both steps because she was frightened by his threats.

In March, Salvato told Dufficy he would kill Crawford if she did not sign a quitclaim deed to her interest in their house. Dufficy relayed that threat to Crawford. On March 25, Crawford, frightened, signed the quitclaim.

The stipulated dissolution decree was filed in September 1988. In November 1988, Crawford retained attorney Barbara Rohan with the goal of having the waiver of community property and the quitclaim deed set aside. Rohan filed a motion for that purpose on February 15, 1989. She testified that she thereafter received from Salvato a series of threats aimed at her and her client. In telephone conversations on February 28 and March 1, Salvato told Rohan her client was making "a fatal mistake" in reopening the property question, and Rohan should advise her to leave the Bay Area. He also said that the law had no power over him, that he would take his own life and vindicate all divorced men in his situation.

On March 3, after a court hearing, Salvato drove by as Rohan and Crawford were standing in the parking lot and mimed shooting a handgun at them. On March 9, Salvato sent Rohan receipts for guns (including an AK-47) and ammunition he had purchased, and informed her and Crawford that he had bought them for his "new found hobby" of target practice. In a letter dated March 10, he wrote that more was at stake than money, that Crawford was trying to destroy his life and he would defend himself, and that even if she won in court he would win in "the court of nature."

On March 17, he wrote Rohan that the bridges were burning and he would eventually arrive at "the final bridge." In a phone conversation on March 24 he said they were "running out of time" and that he would never agree to a division of the community property. On April 5, he sent her a newspaper article about a man who was killed for giving testimony. On April 20, he sent a postcard referring to the Ramon Salcido killings, and on April 24, a packet of news clippings relating to those killings. In the postcard he quoted Salcido's remark that "the law made me do it."

Throughout this period Rohan periodically repeated to Crawford the threats Salvato had made and sent her copies of his letters. Salvato was arrested and his house searched on May 10, 1989.

Salvato was convicted of the following charges:

                Count  Offense               Time Period Alleged
                I      § 136.1 subd.  (c)(1)  1/20/88 "3/25/88
                II     § 136.1 subd.  (c)(1)  2/23/89 "5/5/89
                III    § 422                 9/23/88 " 5/10/89
                V      § 522                 1/20/88"2/19/88
                VI     § 522                 1/20/88"3/25/88
                VII    § 523                 2/23/89"5/5/89
                ----------
                

The jury acquitted on count IV, which charged a violation of section 422 with Rohan as victim.

Salvato was sentenced to a three-year term for count II, a consecutive eight-month term for count III, and concurrent three-year terms for counts V, VI and VII. A three-year term on count I was stayed pursuant to section 654.

I

Prior to trial Salvato moved to require the prosecution to elect the specific acts it would rely on in counts I through IV. That motion was denied and no election was made. The jury was later instructed, as to each count, that "all jurors must agree that [Salvato] committed the same act or acts." (CALJIC No. 17.01 (5th ed. 1988).) Salvato contends that despite the unanimity instruction he was entitled to a prosecutorial election and was prejudiced by its refusal. We agree that the ruling was prejudicial error as to count III, but conclude that counts I and II, charging intimidation of a witness (§ 136.1), fall within the exception for "continuous course of conduct" crimes, which do not require election of an individual act.

A

The doctrine of election protects two procedural rights of the criminal defendant in cases where the evidence tends to show a larger number of offenses than have been charged: the right to a unanimous jury verdict and the right to be advised of the charges. (People v. Gordon (1985) 165 Cal.App.3d 839, 866, 212 Cal.Rptr. 174 [conc. opn. by Sims, J.]; People v. Dunnahoo (1984) 152 Cal.App.3d 561, 570-571, 199 Cal.Rptr. 796.) While a jury instruction may help to ensure the former, it does nothing to effectuate the latter. The "either/or" rule, under which the trial court may meet its sua sponte obligations with either an election or an instruction (see People v. Jones (1990) 51 Cal.3d 294, 307, 270 Cal.Rptr. 611, 792 P.2d 643), has never been held to obviate the right of the defendant to a prosecutorial election upon request.

In the leading case of People v. Castro (1901) 133 Cal. 11, 65 P. 13, the defendant was charged with only one count of rape, while the prosecutrix testified to four separate acts of intercourse over several months. Our high court held that an election was required: "[C]ertainly, the defendant was not called upon to defend himself against all of these respective acts of intercourse, extending through a period of several months.... Possibly, any one of the acts sworn to by the prosecutrix could have been selected by the state as the act charged in the pleading, but the entire four acts could not be so selected. The state, at the commencement of trial, should have been required to select the particular act upon which it relied to make good the allegation of the information. This was not done; and even conceding that the failure to make such election at that time did not constitute error because of the want of demand ..., still, when the case went to the jury, the court, in some form, should have directed their minds to the particular act of intercourse which it was incumbent upon the state to establish.... This was not done." (Id., at p. 13, 65 P. 13.)

Castro establishes the following principles: (1) When the evidence tends to show a larger number of distinct criminal acts than have been charged, the prosecution...

To continue reading

Request your trial
144 cases
  • People v. Jo, C079280
    • United States
    • California Court of Appeals Court of Appeals
    • October 3, 2017
    ...nor a unanimity instruction is required when the crime falls within the 'continuous conduct' exception." ( People v. Salvato (1991) 234 Cal.App.3d 872, 882, 285 Cal.Rptr. 837.) This exception arises in two contexts. ( People v. Thompson (1984) 160 Cal.App.3d 220, 224, 206 Cal.Rptr. 516.) Fi......
  • People v. Burnett
    • United States
    • California Court of Appeals Court of Appeals
    • April 2, 1999
    ...jury was given a unanimity instruction. (People v. Gear (1993) 19 Cal.App.4th 86, 90, 23 Cal.Rptr.2d 261; People v. Salvato (1991) 234 Cal.App.3d 872, 879-880, 285 Cal.Rptr. 837; People v. Moreno (1989) 211 Cal.App.3d 776, 786, 259 Cal.Rptr. 800; People v. Gordon (1985) 165 Cal.App.3d 839, ......
  • People v. Kirvin
    • United States
    • California Court of Appeals Court of Appeals
    • December 4, 2014
    ...As a result, whether each of Defendant's calls was directed toward the same goal is irrelevant.Defendant argues that People v. Salvato (1991) 234 Cal.App.3d 872 dictates a different result. We disagree. The question in Salvato was whether a defendant charged with attempting to dissuade a wi......
  • People v. Funes
    • United States
    • California Court of Appeals Court of Appeals
    • March 31, 1994
    ...courses of conduct.' " (People v. Avina, supra, 14 Cal.App.4th at p. 1310, 18 Cal.Rptr.2d 511, quoting People v. Salvato (1991) 234 Cal.App.3d 872, 882, 285 Cal.Rptr. 837.) "[C]ertain verbs in the English language denote conduct which occurs instantaneously, while other verbs denote conduct......
  • Request a trial to view additional results
2 books & journal articles
  • Table of cases
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Appendices
    • March 30, 2022
    ...(2007) 146 Cal.App.4th 958, §§9:26.1, 9:26.2 People v. Salinas-Jacobo (2019) 33 Cal.App.5th 760, §9:93.3(a) People v. Salvato (1991) 234 Cal.App.3d 872, §9:122 People v. Samayoa (1997) 15 Cal.4th 795, §8:40.1 People v. Sanchez (1969) 2 Cal.App.3d 467, §3:38 People v. Sanchez (1997) 58 Cal.A......
  • Trial defense of dui in California
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Volume 1
    • March 30, 2022
    ...on the basis of the earlier driving. For more information: People v. Jones (1990) 51 Cal.3d 294, 307. People v. Salvato (1991) 234 Cal.App.3d 872. §9:123 Lesser Included or Lesser Related Offense See §§9:140 et seq. on the prohibition of retrying a greater offense after a jury hangs on it w......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT