APPEAL from the Superior Court of Riverside County. Rafael A. Arreola, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) (Super.Ct.Nos. BAF006933, RIF10001857)
The opinion of the court was delivered by: Richli J.
CERTIFIED FOR PUBLICATION
A 911 caller reported seeing defendant Eric Preston Lueth using a tire iron to hit a woman and to damage a vehicle. When the police arrived, defendant's girlfriend had a rapidly swelling bump on her forehead, and her Jeep was damaged. Defendant was bleeding from a cut on his head. The girlfriend refused to tell the police what had happened. At trial, however, she testified that defendant did hit her, but indoors, with his fist; she did not remember being hit outdoors, with a tire iron.
A jury found defendant guilty of aggravated assault (Pen. Code, § 245, subd. (a)(1)), inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)), and vandalism (Pen. Code, § 594, subd. (b)(2)(A)). He admitted one "strike" prior (Pen. Code, § 667, subds. (b)-(i), 1170.12) and two 1-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). He was sentenced to a total of 10 years in prison, plus the usual fines and fees.
Defendant's sole appellate contention is that the trial court erred by refusing to give a unanimity instruction on the charge of inflicting corporal injury on a cohabitant. Our analysis is complicated by the fact that the case law does not clearly or consistently define the unit of prosecution under Penal Code section 273.5. According to People v. Thompson (1984) 160 Cal.App.3d 220, the evidence in this case showed only a single instance of this crime; accordingly, a unanimity instruction was not required. On the other hand, according to People v. Johnson (2007) 150 Cal.App.4th 1467, the evidence showed at least two instances of this crime; accordingly, a unanimity instruction was required, but, on this record, the error was harmless. As the outcome either way is an affirmance, we need not decide whether Thompson or Johnson is correct.
1. The police investigation.
On September 21, 2009, one Allan Curnutte called 911 and reported that "a guy with a tire iron [was] beating the hell out of a woman." That guy had also "punched out" the tire of a vehicle. Curnutte identified the guy as his neighbor, "Eric."
When the police responded, defendant was standing in the doorway of a house. He was covered in blood from "[a] minor head injury." He was "agitated" and uncooperative. The police used a taser to subdue him.
The windshield of a nearby Jeep was broken; one of its tires had puncture marks and was flat. Defendant admitted causing the damage to the Jeep.
The police interviewed the victim, Angela Rapp. They noticed a "big ole bump on [Rapp's] forehead" that was "growing by the minute." A photograph of Rapp, showing the bump, was in evidence. Rapp told police that she had gotten into an argument with defendant. Otherwise, however, she refused to tell them anything.
Defendant's brother, Travis Sihock, told police that defendant and Rapp came inside the house. Defendant was covered in blood; Rapp was crying. Defendant pushed her to the floor, held her down, and yelled at her, but he did not hit her.
Defendant's mother, Joyce Sihock, told police that she "didn't witness the incident . . . ."
The police did not find a tire iron.
2. Curnutte's testimony at trial.
At trial, Curnutte identified defendant as the guy with the tire iron. He admitted that, technically, he did not see defendant hit the woman. Rather, the woman disappeared from his view, evidently falling to the ground. He then saw defendant swinging a tire iron down in the area where the woman had fallen, while the woman was "yelling and screaming [and] crying."
According to Curnutte, defendant flattened one of the Jeep's tires by hitting it with the tire iron; he then used the ...