IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR

THE PEOPLE,

MICHAEL ANTHONY GONZALES,

                                Defendant and Appellant.
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A.     THE EVIDENCE

    On February 6, 1992, Pelican Bay Correctional Officers Don Coleman and James Vonada moved appellant and his cellmate from their cell to a shower unit for security purposes while the officers conducted a cell search. The cellmate was placed inside the upper shower unit; appellant was placed inside the lower.

    Because the mechanism to open the lower shower door was not working properly, appellant (dressed in undershorts and shower shoes) was handcuffed behind his back "for security reasons" while the correctional officers attempted to push open the door. Vonada explained in these terms what happened at the point at which they .got the shower door to open: "[A]s we were getting ready to open the door, [appellant] confronted us. We ordered him to turn his back to the door, which he complied. The door opened, he backed out . . . and he turned to his left and made a kicking motion, with his left foot striking my partner." Vonada added, "We . . .went ahead and regained control of Inmate Gonzales, at which time during the struggle I sustained a blow to my right leg. We placed him on the floor, at which time he was still highly combative on the floor, swinging and kicking from side to side."

    Coleman testified that appellant kicked him on the knee and bit him on the hand while the officer was attempting to restrain him. Coleman believed appellant's intent was to break his knee: "[I]f an inmate is restrained, if he's going to disable an officer, it doesn't take much pressure on . . . the knee to break it, and that would be the best way to do it." With respect to the bite, Coleman testified that appellant had his teeth clenched on Coleman's finger which caused the skin to peel as Coleman pulled his finger from appellant's mouth.

    Both Coleman and appellant were examined by medical technical assistants (MTA) at the prison. According to MTA Gollihar, Coleman suffered an abrasion to the leg and a scrape wound to a knuckle: she did not see any teeth marks on the finger. The wound could have been caused by hitting the wall with the hand.

    Appellant suffered more substantial injuries. He had abrasions over the right eye, in front of the right ear, inside and outside of the mouth, on the left side of his nose, above his left eyebrow, on the left side of the head, behind his right ear, and on the right ankle. He also suffered scrapes on the right and left knees, the anterior ankle, his right foot, his left upper arm, tight back, and right thigh. After the injuries were cleaned, he was returned to his cell.

    Appellant's version of events differed greatly from that of Vonada and Coleman. Appellant denied that he came out of the shower kicking. Appellant testified that as he backed out of the cell Coleman tried to trip him. When that did not work, Vonada pushed him from behind and Coleman threw him to the floor. According to appellant, "they both just went off, Coleman grabbed my head, banged my head about nine times on the scalp and the . . . forehead."

    Appellant stated that he might have kicked Coleman during the scuffle, but stated that any such kick was in self-defense: "Only thing I did, if I kicked him when I was on the floor, this was because when I was laying like this on the floor they hit me from this side, it started to hurt, after awhile I turned this way, it started to hurt that way, I was just back and forth trying to keep from getting punches in my face. [¶] If they got kicked or anything, it's because my feet was going like that, that's it. I didn't come out and kick them. . . . [T]hey are making that stuff up."

    Appellant denied, however, biting Coleman: "I haven't got no teeth in front to lock on his finger . . . . "

    The information charged a single count of battery upon a "correctional officer." The correctional officer was not identified. At trial the prosecutor elected not to use the kick upon officer Vonada as the basis for the battery charge. Instead he focused on both the alleged kick and bite upon Officer Coleman. He thus argued to the jury, "You've heard evidence that actually there were two batteries . . . . What you are here for is whether the kick and the bite, either one of which could have been a separate felony battery, only one charge . . . you are going to have to decide whether there was at least one battery out of the two that had to do with Coleman."

REVIEW

    Appellant contends that the trial court should have instructed the jurors on its own motion per CALJIC No. 17.01 (5th ed. 1988 bound vol.) that they had to unanimously agree on which act constituted the single count of battery upon Officer Coleman. The Attorney General counters that such an instruction was not warranted because the case falls within the course of conduct exception. We agree with appellant.

    The California Constitution guarantees the right to a unanimous jury in criminal cases. (Cal. Const., art. I, § 16; People v. Jones (1990) 51 Cal.3d 294, 305.) The guarantee of unanimity means a number of things. In a case in which the information charges a single offense but the evidence shows the appellant has committed two or more acts, each of which is a separately chargeable offense, unanimity means that the jury must agree on which act constitutes the single offense. (People v. Mickle (1991) 54 Cal.3d 140, 178; People v. Sutherland (1993) 17 Cal.App.4th 602, 611-612.) For that reason, where the evidence shows more than one violation of the charged offense and the prosecutor has not elected to rely on a specific act or event for its charge, the trial court is required to sua sponte instruct the jurors that they must unanimously agree on which criminal act or event supports the charge. (People v. Diedrich (1982) 31 Cal.3d 263, 282; People v. Avina (1993) 14 Cal.App.4th 1303, 1309; People v. Davis (1992) 8 Cal.App.4th 28, 41; People v. Moore (1986) 185 Cal.App.3d 1005, 1014.)

    Generally speaking delivery of a unanimity instruction is not required where the criminal acts are part of a continuing course of conduct, that is, where the acts are committed so closely in time that they are part of one and the same transaction and hence constitute one offense. (See People v. Diedrich (1982) 31 Cal.3d 263, 282; People v. Thompson (1984) 160 Cal.App.3d 220, 224; People v. Tucciarone (1982) 137 Cal.App.3d 701, 708; People v. Mota (1981) 115 Cal.App.3d 227, 231-234.) But for this exception to fit the defendant must tender the same defense or defenses to each act so there is no reasonable basis for the jury to distinguish between them. (People v. Crandell (1988) 46 Cal.3d 833 , 875.) If the defendant tenders different defenses to the criminal acts, a unanimity instruction must be given. (Ibid.)

    Thus the question is whether the continuing course of conduct exception applies to this case. On first blush the Attorney General's continuing course of conduct argument makes sense in light of the evidence showing that the kick and the bite were part of the same fight, closely related in time and space.

    But, the Attorney General's analysis fails to appreciate how this case was tried. Appellant offered distinct defenses to each act. As to the bite, appellant testified he did not do the act; as to the kick, he testified it was an act in self-defense to battery by the correctional officers. Because appellant tendered different defenses to the two acts, and the jury could have reasonably distinguished between the two acts, the continuing course of conduct exception does not apply. (Cf. People v. Crandell, supra, 46 Cal.3d at p. 875.) A unanimity instruction was required.

    The remaining question is whether the failure to deliver a unanimity instruction resulted in a miscarriage of justice within the meaning of article VI, section 13 of the California Constitution. The Attorney General argues that the failure to give CALJIC No. 17.01 was harmless because it was not reasonably probable that the jury disagreed on which act constituted the battery. (People v. Melendez (1990) 224 Cal.App.3d 1420, 1430.) We read the record very differently. In our view, some jurors could have reasonably disbelieved Coleman's testimony regarding the bite (on the basis of appellant's testimony and the inconclusive medical testimony and photographic evidence) but could have voted to convict on the basis of a kick not in self-defense. Others could have believed Coleman's testimony regarding the bite and voted to convict on that basis. In short, "contrary to respondent's assertion, this is a case where jurors could disagree on which act defendant committed and still convict him of the crime charged." (People v. Melendez, supra, 224 Cal.App.3d at p. 1431.)

    In light of this conclusion we do not consider the other contentions advanced on appeal.

    The judgment is reversed.

Poche, Acting P.J.

WE CONCUR:

Perley, J.
Reardon, J.