People v. Jaramillo CA3

Filed 6/13/16 P. v. Jaramillo CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE, C077735

Plaintiff and Respondent, (Super. Ct. No. CRF 14-2969)

v.

FRANCISCO PANCHO JARAMILLO,

Defendant and Appellant.

A jury convicted defendant Francisco Pancho Jaramillo of infliction of corporal injury on a former cohabitant (Pen. Code, § 273.5, subd. (a); undesignated section references are to this code; count 1) and, in connection with the offense, found defendant inflicted great bodily injury (§ 12022.7, subd. (e)). In bifurcated proceedings, the court sustained a prior prison term allegation (§ 667.5, subd. (b)). The court sentenced defendant to state prison.

1

Defendant appeals, contending the trial court prejudicially erred in failing to instruct the jury on unanimity. He argues the prosecution presented multiple acts to prove a single count of infliction of corporal injury on a former cohabitant. He concedes the enhancement for great bodily injury was based on the finding he broke the victim’s rib by slamming her into a wall. The People claim an unanimity instruction was not required because the evidence described a continuous course of conduct and the prosecutor elected the act which formed the basis for the corporal injury charge and enhancement. Moreover, the People claim any instructional error was harmless beyond a reasonable doubt. We conclude the trial court did not have a duty to provide a unanimity instruction. The information charged defendant with one count of corporal injury which occurred “[o]n or about June 23, 2014,” and that during the commission of the offense, defendant personally inflicted great bodily injury under circumstances involving domestic violence. We recount the evidence adduced at trial. About 7:00 p.m. on June 22, 2014, Felicia L. and defendant, who had been dating for almost two years, were walking towards her home when they heard a girl yell out defendant’s name. Defendant tried to let go of Felicia’s hand and she asked what was going on. When they arrived at Felicia’s home, defendant “just snapped,” yelling at her and calling her names. She tried to enter her home but defendant grabbed her so tightly he left finger-shaped bruises on her arms. He shoved her into the corner of the garage and her side hit the corner. He used his body to “body slam” and pin her against the wall. When she screamed and told him to get away, he stopped and walked away “like nothing happened.” Later that night, they slept together at an abandoned hospital across the street from her home. He was homeless and that was where he normally slept at night. The next day, they had a picnic at the park. She felt a sharp pain in her side that had hit the corner of the garage the night before. The pain worsened during the day and