Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCS221367, William Gentry, Jr., Judge.
BENKE, Acting P. J.
Victor Munoz Nunez was convicted of assaulting a fellow inmate. The prosecution provided evidence Nunez and another inmate were seen by prison officers repeatedly punching the victim. When the beating was halted, guards discovered the victim had been slashed twice across the face. The prosecution theorized the victim was being punished for not obeying orders from a prison gang and that the beating the guards observed was merely a means of distracting the guards so that a third assailant, who actually slashed the victim's face, could escape and discard the weapon he had used. The prosecution's theory was supported by evidence of blood found on a fourth inmate's clothes and shoes, as well as a cut on his thumb and testimony from a prison gang expert.
In arguing Nunez was guilty of assault, the prosecutor told the jury it could find him guilty either because he had been seen punching the victim or because the punches Nunez delivered were part of a larger plan to slash the victim's face. Contrary to Nunez's argument, the prosecutor's alternative theories did not require the trial court give the jury a unanimity instruction. A unanimity instruction is only required where the prosecution offers discrete crimes which a defendant may be found to have committed. Here, the prosecution merely suggested alternative ways in which the jury could interpret Nunez's intentions when he committed a single act: his physical assault of the victim.
Accordingly, we affirm Nunez's conviction.
PROCEDURAL HISTORY
On November 17, 2008, Nunez was charged with one count of commission of assault by a prisoner and one count of being a prisoner in possession of a dangerous weapon. (Pen. Code, §§ 4501, 4502, subd., (a).) On January 13, 2009, a jury found Nunez guilty of assault and not guilty of possessing a dangerous weapon. Nunez was sentenced to four years on the assault conviction.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL BACKGROUND
A. Prosecution Evidence
At all relevant times Nunez was an inmate at the Richard J. Donovan Correctional Facility. On March 19, 2008, a prison officer saw Nunez and another inmate, Abraham Gomez, punching a third inmate, Michael Montanez, on Yard 19 at the prison. Although all inmates on the yard were instructed on a loudspeaker to "go down," Nunez and Gomez disregarded the instruction and continued punching Montanez, who had tripped backwards and fallen to the ground. An officer then sprayed Nunez and Gomez with pepper spray and the assault ceased. The entire incident lasted about 12 seconds.
After Nunez and Gomez were subdued, officers discovered Montanez's face had been slashed twice. Each face wound was deep and about two and three-quarter inches long. According to one of the officers, the wounds bled profusely and there was "[b]lood, just blood everywhere." The wounds required sutures.
In investigating the incident, a prison officer noticed a fourth Latino inmate, Marales, sitting with a group of Caucasian inmates. The officer thought this was unusual because of the strict racial segregation practiced by inmates at the prison. Upon further investigation, the officer discovered blood on Marales's clothing and shoes and a cut on his thumb. Notwithstanding the wounds Montanez suffered and the blood and cut found on Marales, prison officers were never able to find the weapon used to slash Montanez.
A prison gang expert testified that slashing an inmate's face is one method prison gangs use to enforce discipline. After an inmate's face has been slashed, other inmates know the inmate has been disloyal or disobedient to the racial gang to which the inmate is required to belong and what will happen to them if they are disloyal or disobedient. The expert also testified that the slashings are accomplished by more than one inmate. One inmate may actually inflict the slashing, but other inmates will create a distraction by beating the inmate and permitting the primary assailant to escape and discard the weapon.
B. Defense Evidence
Nunez testified on his own behalf. Nunez testified he had accidentally bumped Montanez while playing handball and In response Montanez had made "evil eyes" at Nunez. Because Montanez is six feet tall and weighs 200 pounds, while Nunez is five feet, six inches, Nunez stated he was afraid and just closed his eyes and began hitting Montanez. Nunez testified that he was unaware of any Latino gangs at the prison or any racial segregation.
Although the court initially indicated it would give a unanimity instruction, it did not do so. In his argument to the jury, the prosecutor stated Nunez could be found guilty of assault either because he hit Montanez or because the punches he threw were part of a conspiracy to assault Montanez.
DISCUSSION
On appeal Nunez contends that, in light of the prosecutor's alternative theories of culpability, the trial court was required sua sponte to give a unanimity instruction. We disagree.
"This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' [Citation.] For example, in People v. Diedrich, supra, 31 Cal.3d 263, the defendant was convicted of a single count of bribery, but the evidence showed two discrete bribes. We found the absence of a unanimity instruction reversible error because without it, some of the jurors may have believed the defendant guilty of one of the acts of bribery while other jurors believed him guilty of the other, resulting in no unanimous verdict that he was guilty of any specific bribe. (Id. at pp. 280-283.) 'The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.' [Citation.]
"On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty. [Citation.] The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. (Pen. Code, § 459.) If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require the unanimity instruction. [Citation.] Other typical examples include the rule that, to convict a defendant of first degree murder, the jury must unanimously agree on guilt of a specific murder but need not agree on a theory of premeditation or felony murder [citation], and the rule that the jury need not agree on whether the defendant was guilty as the direct perpetrator or as an aider and abettor as long as it agreed on a specific crime [citation]." (People v. Russo (2001) 25 Cal.4th 1124, 1132-1133.)
Here, the evidence showed and the prosecutor only argued Nunez committed but a single act: his physical assault on Montanez. The prosecutor argued that single act was itself an assault within the meaning of section 4501 or was part of a larger conspiracy to slash Montanez's face. The prosecutor suggested that under either theory Nunez was guilty of but a single violation of section 4501. Neither the information nor the prosecutor's argument made Nunez culpable for more than one crime or even one act. Under those circumstances, the jury was not required to agree upon which theory of culpability advanced by the prosecutor applied to Nunez. (See People v. Russo, supra, 25 Cal.4th at pp. 1132-1133.)
Section 4501 provides in pertinent part: "[E]very person confined in a state prison of this state who commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, shall be guilty of a felony and shall be imprisoned in the state prison for two, four, or six years to be served consecutively."
In this regard the record here is in marked contrast to the one considered in People v. Madden (1981) 116 Cal.App.3d 212, 219, footnote 6, upon which Nunez relies. In People v. Madden the evidence showed the defendant committed a number of sexual assaults on the victim and also aided and abetted his codefendant in committing separate sexual assaults. Under those circumstances, where any of a number of acts, including aiding and abetting the codefendant, could have given rise to the defendant's convictions, a unanimity instruction was required. (Ibid.) Here, we consider the converse: a single act was shown and alternative theories of how that act would give rise to liability for a single crime was offered by the prosecution. In that context no unanimity instruction was required. (See People v. Russo, supra, 25 Cal.4th at pp. 1132-1133.)
The judgment of conviction is affirmed.
WE CONCUR: McINTYRE, J.IRION, J.