Filed 4/8/22 P. v. Gonzalez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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Defendant Josue Gonzalez appeals from a jury verdict finding him guilty of assault with a deadly weapon other than a firearm, corporal injury on a spouse, and lesser-included simple assaults. Defendant contends the trial court prejudicially erred in failing to give a unanimity instruction as to the assault with a deadly weapon conviction, as there were at least two assaultive acts that could constitute the crime. The People claim the assaultive acts were committed as part of a continuous course of conduct and therefore a unanimity instruction was not required. We conclude any error was harmless.

FACTUAL AND PROCEDURAL BACKGROUND

Jane Doe and defendant had a son during their seven-year relationship. After their relationship ended, defendant was allowed to visit the son if he was not intoxicated. Unannounced, and while possibly still intoxicated, defendant came to Doe’s home and the two fought for approximately an hour. During the fight, defendant threw Doe on the bed, tried to pull down her pajama pants, and pulled her hair while she pushed and kicked him. Doe briefly broke free of defendant’s control and stood up from the bed. Defendant brandished a hammer above his head and asked in a “strong” tone if Doe was afraid. Doe rushed out of the house and defendant followed her.

Defendant tried to drag Doe back into the house by her hair, but she resisted and grabbed onto the nearby fence. Doe held onto the fence as defendant repeatedly struck the fence with a hammer near her head and asked whether she was scared. Defendant pushed Doe to the ground, climbed on top of her, grabbed her by the neck, and tried to take off her pants. Doe defended herself by scratching defendant’s face and pushing him away. Defendant continued to strangle Doe until she started to pass out, prompting defendant to briefly administer aid and allow Doe to stand up. Doe yelled at a passerby for help, but they provided no assistance. Despite her resistance, defendant put his hands on Doe’s breasts underneath her shirt, tried to kiss her, and tried to digitally penetrate her over her clothes while she was pinned against the fence. Doe eventually broke free of defendant and rushed back inside her house. Defendant left with the hammer.

Doe sustained numerous injuries during this altercation, resulting in two emergency room visits. Doe reported throat and vaginal pain, and she sustained bruising on her throat. During a sexual assault exam Doe complained of pain to her head, right elbow and buttocks, back, and fingernails. Examinations revealed pinpoint hemorrhages to the roof of Doe’s mouth. Her clothing was ripped and had dried vegetation on the backside. Doe was diagnosed with a neck contusion and treated with ibuprofen.

Law enforcement arrested defendant at his home, searched his vehicle, and found a hammer underneath the passenger seat.

Defendant admitted he pushed Doe twice but denied that he physically and sexually assaulted her. Defendant explained he picked up the hammer before entering the house to protect their son from hurting himself.

The People charged defendant with assault with intent to commit rape, sodomy, or oral copulation (Pen. Code, § 220, subd. (a)(1); count 1);[1] assault with a deadly weapon (§ 245, subd. (a)(1); count 2); corporal injury on a spouse (§ 273.5, subd. (a); count 3); assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 4); false imprisonment by violence (§ 236; count 5); and misdemeanor cruelty to a child by inflicting injury (§ 273a, subd. (b); count 6). The information further charged that defendant was armed with a deadly weapon and it identified the deadly weapon as a hammer. (§§ 12022.3, subd. (b) [count 1], 12022, subd. (b) [counts 3, 4, 5].)

The jury found defendant guilty of assault with a deadly weapon and corporal injury on a spouse, and the lesser-included offenses of simple assault with respect to counts 1 and 4, and misdemeanor false imprisonment. The jury also found true the allegation that defendant used a deadly weapon. The jury found defendant not guilty as to all remaining charges. The court sentenced defendant to three years in state prison as follows: two years (the low term) for corporal injury on a spouse and one year for the deadly weapon enhancement. The court stayed defendant’s sentence under section 654 for the assault with a deadly weapon conviction.

DISCUSSION

Defendant contends the trial court prejudicially erred in denying his request to give a unanimity instruction as to the assault with a deadly weapon charge. Specifically, he contends the prosecutor argued there were two distinct acts that could support this charge, when he held the hammer over his head in the bedroom and asked Doe if she was scared, and when he was outside hitting the fence near her head. The People argue that defendant committed a series of abusive acts as part of a continuous course of conduct and he did not differentiate his defense between the charged actions, and thus, a unanimity instruction was not required. Alternatively, the People argue that any error was harmless.

Additional Background

Defense counsel requested a unanimity instruction on the assault with a deadly weapon charge. Defense counsel argued that the continuous-course-of-conduct exception did not apply because the defendant’s potential assaults were by definition “singular in nature,” thus requiring an election from the People. The prosecution objected to giving a unanimity instruction, arguing defendant committed each of the charged crimes in a continuous course of conduct starting with his arrival and concluding with his departure from Doe’s residence. The trial court denied the request, relying on the continuous-course-of-conduct exception, and stating that it did not see any authority for giving a unanimity instruction in an assault case. Instead, the trial court likened the case to one “where there’s kicking, there’s hitting, there’s pushing, and we do not require a jury to unanimously agree that they believe that the punch was what they agreed upon, that it could be -- some could say it’s the pushing. Some could say it was the shoving.”

Analysis

“As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty. [Citation.] There are, however, several exceptions to this rule. For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ [citation] or ‘when . . . the statute contemplates a continuous course of conduct or a series of acts over a period of time.’ [Citation.] There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime. [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 679.)

Here, we need not resolve whether the offenses here were part of a continuous course of conduct, as we conclude any error in failing to give the unanimity instruction was harmless.

The court’s failure to provide a unanimity instruction is subject to Chapman[2] harmless error analysis. (People v. Curry (2007) 158 Cal.App.4th 766, 783.) Under Chapman, our task is “ ‘whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite [elements of the crime] independently of the force of the . . . misinstruction.’ ” (People v. Wolfe (2003) 114 Cal.App.4th 177, 188.) If the record provides no rational basis for jurors to distinguish between the criminal acts, and jurors had to believe beyond a reasonable doubt that defendant committed all acts if any, the court’s failure to provide a unanimity instruction is harmless. (Curry, at p. 783.) Additionally, if the record demonstrates the jury resolved the basic credibility dispute against defendant and thus would have convicted him of the charged offenses proven by the evidence, the failure to give a unanimity instruction is harmless. (Ibid.)

The People charged one count of assault with a deadly weapon but presented evidence of two acts and argued in closing that the jury could consider both acts together for conviction. Defendant acknowledged he picked up the hammer before entering the house and was later found in possession of it. As defendant concedes, he offered the same defense as to each; he denied assaulting Doe with the hammer and argued Doe’s testimony was not credible. As to both hammer assaults, the claim was essentially defendant raised the hammer, threatened Doe with it, and asked her if she was afraid. There was no rational basis in evidence or argument on which to distinguish these assaults; that is, there was no basis for the jury to have believed defendant committed one assault and not the other. At its essence, this case was a credibility dispute and the entirety of the verdicts show that jurors resolved that dispute against defendant. Defendant denied doing anything to Doe, other than two pushes. The jury found defendant committed not only the assault with a deadly weapon, but also corporal injury on a spouse, two lesser-included simple assaults, and misdemeanor false imprisonment. The fact the jury acquitted defendant of the greater offenses of assault with intent to commit a sexual offense and assault with force likely to result in great bodily injury, shows jurors rejected evidence supporting the defendant’s sexual motives and severity of Doe’s injuries, respectively—but found credible Doe’s testimony that the assaults occurred. The verdicts demonstrate the jury believed Doe’s testimony that defendant came by her home and the two fought for nearly an hour as defendant wielded the hammer; but the jury did not believe defendant’s blanket denial. The victim related a number of assaultive acts occurred over the course of an hour and defendant denied it. In these cases, the “jury either believes or disbelieves the defendant, but ‘there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them.’ [Citations.]” (People v. Napoles (2002) 104 Cal.App.4th 108, 119-120.) We conclude therefore that any instructional error was not prejudicial.

DISPOSITION

The judgment is affirmed.

/s/

RAYE, P. J.

We concur:

/s/

MAURO, J.

/s/

HOCH, J.

[1] Undesignated statutory references are to the Penal Code.

[2] Chapman v. California (1967) 386 U.S. 18.