California Court of Appeals, Fourth District, Second Division
APPEAL from the Superior Court of Riverside County, No. RIF149998 Gary B. Tranbarger, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Andrew Mestman, Deputy Attorneys General, for the Plaintiff and Respondent.
KING Acting P. J.
Defendant and appellant Allan Corral Hernandez was convicted by a jury of battery of a cohabitant (Pen. Code, § 243, subd. (e)(1); count 1),  intimidation of a witness (§ 136.1, subd. (b); count 3), unlawful possession of a firearm following a felony conviction (§ 12021, subd. (c)(1); count 5),  and unlawful possession of ammunition (§ 12316, subd. (b)(1); count 6). In a bifurcated proceeding, the trial court found that defendant had a one-year prior prison conviction, two prior serious felony convictions, and two prior strike convictions. (§§ 667, subds. (a), (e)(2)(A), 667.5, subd. (b), 1170.12, subd. (c)(2)(A).)
Defendant was sentenced to 25 years to life on each of counts 3, 5, and 6, plus one year on count 1. The sentences on counts 1 and 5 are to run consecutive to the sentence on count 3; the sentence on count 6 is to run concurrent to the sentence on count 5.
Defendant appeals his convictions on counts 5 and 6 for unlawful possession of a firearm and ammunition. Defendant argues that the evidence presented at trial revealed two plausible instances in which he could have been in possession of a firearm and ammunition. He further argues that each instance was separated by time and space, and a different defense was proffered as to each instance of possession. At trial, the prosecutor failed to elect which instance of possession he was using to prove the charged offenses and the trial court did not, sua sponte, give a unanimity instruction to the jury.
We find that defendant’s arguments on appeal are meritorious and hold that the trial court’s failure to give a unanimity instruction was error. We further hold that the error was not harmless. Accordingly, the judgment of the trial court as to counts 5 and 6 is reversed.
A. The Events of April 5, 2009
In April 2009, defendant lived with his girlfriend, Jane Doe, in her house. On the afternoon of April 5, 2009, an oral argument between defendant and Doe turned violent. A physical altercation ensued, in which defendant allegedly choked Doe. The police were called, and defendant fled the scene in a gold-colored Toyota Camry. When the police arrived, Doe told a responding officer that a domestic violence altercation had occurred between she and defendant, and that defendant had attacked her. Thereafter, Doe and defendant ceased living together.
Between April 5, 2009 and April 8, 2009, defendant called and text-messaged Doe on more than 20 occasions, insisting that she alter her story regarding the domestic violence incident. Defendant demanded that Doe tell the police that she, not he, was the one who started the violence between them.
B. The Stop of the White Oldsmobile at Midnight on April 8, 2009
In the early evening hours of April 8, 2009, Doe observed a white Oldsmobile drive past her house two or three times. While Doe found it odd that the car repeatedly passed her house, she did not report this suspicious activity to the police.
Coincidentally, at approximately midnight that evening, Riverside Police Officer Darrell Hill stopped a white Oldsmobile for a traffic violation near Doe’s home. The Oldsmobile was being driven by defendant’s friend, Chadwick Miller, and defendant was a passenger in the vehicle. Because Miller and defendant were both on parole at that time, Officer Hill detained them and conducted a routine search of their persons and of the Oldsmobile. Officer Hill detained defendant and Miller for approximately 45 minutes; the search of the car lasted approximately 20 minutes. Officer Hill did not find any firearms, ammunition, or ammunition containers.
Officer Hill testified he did not remember whether he searched under the hood of the Oldsmobile. However, Miller testified that Officer Hill searched “[e]verywhere.” When asked at trial if Officer Hill searched underneath the hood of the Oldsmobile, Miller reiterated that he searched “[e]verywhere, ” insinuating that the engine compartment was also searched. Officer Hill’s search did not yield any contraband, and both men were released.
C. The Shooting at Doe’s Home on April 8, 2009
After Officer Hill released them, defendant and Miller continued on to Doe’s home, which was within two miles from where Officer Hill had stopped them. The witness testimony presented at trial about what occurred at Doe’s home that night was riddled with inconsistencies.
The prosecution relied on Doe’s testimony to describe the events of that evening. Doe testified that she was inside the home with her friend, Irene Perez, and a family member, Ernie Fuentes. Doe, Perez, and Fuentes heard a noise outside, and Perez saw someone move across the front yard. Using a video surveillance system, Doe saw two shadows and then saw defendant appear at her front door. 
Doe gave conflicting testimony about what she observed in defendant’s hands when he approached her front door. On direct examination, Doe positively identified the type of gun defendant had in his hands as an eight-inch revolver; when shown a photograph of a gun later recovered by the police in a car driven by defendant, Doe stated that it was the gun defendant had that night. Doe further testified that as Fuentes looked outside he stated that defendant had a gun. Doe later testified, however, that she only saw something “shiny” in defendant’s hands when he approached her front door. She denied being able to see a gun clearly that night, conceding that “[i]t was hard to see, ” and that she could “just see, like, shiny parts” from her vantage point. On cross-examination, Doe admitted she never actually saw a gun that night, and reaffirmed that she only saw the “shiny” object.
After defendant repeatedly demanded that he be allowed to speak to Doe, Perez called the police. When defendant learned that Perez had made a 911 call, he left the front door and moved to the side of the house. Subsequently, Doe, Fuentes, and Perez heard “popping” noises, consistent with the sound of gunfire, emanating from the side of the house. Lastly, Doe testified that she knew defendant did not generally carry a weapon.
During the 911 call, Perez told the dispatcher that defendant had fired a gun at the residence and tried to break into the house. At trial, she testified that this was not true, and that she had given false information to the 911 dispatcher. Deputy Christian Wilcox testified that upon responding to the 911 call, he inspected the premises. He saw no evidence that a gun had been fired.
The defense’s account of the events that night were significantly different. Defendant claimed he did not have a firearm when he went up to Doe’s door. In support of this contention, defendant relied on the testimony of Miller and Perez.
Miller testified that neither he nor defendant possessed a firearm that night. Although he had been driving his white Oldsmobile with defendant that night, they had not driven past Doe’s home earlier in the day. After Officer Hill had stopped them, they continued on to Doe’s house because defendant wanted to retrieve some clothing he had left at the house. When they arrived at Doe’s house, defendant went up to the door to speak with Doe, while Miller remained alongside his car. Miller then heard gunshots emanating “pretty close” to the “house area.” He then told defendant they needed to “get out of [t]here, ” because he and defendant were on parole. They got into the Oldsmobile and left the scene.
Perez’s testimony also countered the prosecution’s theory of the events of April 8, 2009. She testified that she and Doe were up late that night using methamphetamine in Doe’s room. Through the surveillance camera, she saw defendant “show up” with Miller. Thereafter, defendant knocked on a window in an attempt to speak with Doe. In contrast to Miller’s testimony, Perez testified that both defendant and Miller came up to the front door. When questioned about whether defendant had anything in his hands while he was at the front ...