Filed 5/26/21 P. v. Mejia CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

NOE MEJIA,

Defendant and Appellant.

 H046662

 (Santa Clara County

 Super. Ct. No. C1641926)

A jury convicted appellant Noe Mejia of inflicting corporal injury on a partner

while having a prior conviction for the same crime within seven years (count 2) and 

misdemeanor assault (count 1). The trial court sentenced Mejia to eight years in prison.

On appeal, Mejia claims the trial court erred by failing to instruct sua sponte on 

the defense of property for count 2 and, alternatively, his defense counsel performed 

ineffectively by failing to request such an instruction. Mejia further contends the trial 

court erred by failing to instruct sua sponte on unanimity for count 2 and, alternatively, 

his defense counsel performed ineffectively by failing to request such an instruction. 

Mejia also contends that the cumulative effect of the trial court’s alleged instructional

errors was prejudicial. In addition, Mejia claims his conviction on count 1 for assault is 
2

barred by double jeopardy protections because simple assault is a lesser-included offense 

of count 2.1

For the reasons explained below, we affirm the judgment.

I. FACTS AND PROCEDURAL BACKGROUND

A. Procedural Background

In September 2017, the Santa Clara County District Attorney filed a first amended 

information (information) charging Mejia with assault by means likely to produce great 

bodily injury (Pen. Code, § 245, subd. (a)(4);2count 1), infliction of corporal injury on a 

partner with a prior conviction within seven years (§ 273.5, subds. (a), (f)(1); count 2), 

criminal threats (§ 422; count 3), and dissuasion of a witness by force or threat (§ 136.1, 

subd. (c)(1); count 4).3 As to counts 1 and 2, the information alleged that Mejia had 

inflicted great bodily injury (§§ 12022.7, subd. (e), 1203, subd. (e)(3)). The information 

also alleged that Mejia had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 

1170.12) and two prior serious or violent felony convictions (§ 667, subd. (a)), and had 

served a prior prison term (prison prior) (§ 667.5, subd. (b)). 

In March 2018, the jury found Mejia guilty of count 2 and the lesser-included 

offense of simple assault for count 1. The jury acquitted Mejia of counts 3 and 4. As to 

count 2, the jury found true that Mejia had suffered a prior conviction for a violation of 

section 273.5, subdivision (a), in the preceding seven years. But the jury found not true 

1

In his opening brief, Mejia also claims that Penal Code section 654 applies to 

counts 1 and 2 and, thus, his punishment on count 1 should be stayed. However, in his 

reply brief, Mejia agrees with the Attorney General that his claim is moot because he has

already served his misdemeanor sentence for count 1. We accept Mejia’s concession and 

will not further address his Penal Code section 654 claim. 

2 Unspecified statutory references are to the Penal Code.

3 The same person is the alleged victim in all counts of the information. To 

protect the victim’s privacy, we will refer to her as Sophia S. or Sophia. (Cal. Rules of 

Court, rule 8.90(b)(4).)
3

the allegation that Mejia inflicted great bodily injury on the victim under section 12022.7, 

subdivision (e). 

In July 2018, following a court trial, the trial court found true the two prior strike 

allegations and the prison prior allegation. 

In January 2019, the trial court denied Mejia’s motion for new trial and motion to 

dismiss the prior strikes. The court sentenced Mejia to eight years in prison on count 2. 

On count 1, the court imposed 120 days in county jail and deemed that sentence served. 

The court struck the one-year prison prior enhancement (§ 667.5, subd. (b)) in the interest 

of justice (§ 1385).

B. Evidence Presented at Trial

1. Prosecution Evidence

Mejia and Sophia S. had dated off and on for about three and one-half years before 

June 19, 2016.4 Their final dating period lasted from around the end of March/beginning 

of April until June 19—Father’s Day. 

On the morning of June 19, Mejia and Sophia went to a car dealership, where

Mejia purchased a car for them to share. Sophia also smoked methamphetamine alone 

that morning. That afternoon, Mejia and Sophia spent time at Sophia’s apartment in San 

Jose. Mejia left the apartment for two or three hours to visit his son and returned about

6:30 or 7:00 p.m. When Mejia came back, he was upset because he had not been able to 

see his son. Mejia and Sophia argued, and Sophia left her bedroom to “give [Mejia] his 

space because he was upset” and call her children to say goodnight.

Later, Sophia entered the bedroom to get some things from her dresser before 

taking a shower. Mejia punched Sophia in her nose with a closed fist. Sophia, who was 

bleeding, fell to the floor and covered her nose. Mejia hit and punched Sophia some 

more and kicked her in the face. Mejia picked Sophia up off the floor by grabbing her 

4 Unless otherwise indicated, all dates occurred in 2016. 
4

neck. Mejia then pushed Sophia back to the floor, got on top of her, and choked her with 

both of his hands. Sophia could not breathe; she believed she “passed out” because her

“vision went black and her body felt warm.” Mejia then picked Sophia up by her hair 

and took her into the kitchen, where he strangled her. She told Mejia to stop and said that

she loved him. She also asked him why he was “doing this.” Mejia called Sophia a dog 

and a “fucking bitch.” He threatened to kill her a couple of times. Sophia believed she 

was going to die. 

After Mejia stopped strangling Sophia, she ran out of the apartment and down a 

hallway. Mejia ran after her, grabbed her by her hair, and began pulling her back to the 

apartment. He also punched her in the head more than once. Mejia told Sophia that the 

police had been called and urged that they return to the apartment. Mejia held Sophia up 

and began walking her back to the apartment.

At that point, about 11:00 p.m., San Jose Police Department Officer Jason 

Wellman and his field training officer arrived at the apartment building. Wellman saw

Mejia and Sophia standing next to each other in the hallway outside of Sophia’s secondfloor apartment. Sophia was crying; she appeared “frightened” and “a little bit shaken 

up.” According to Sophia, Mejia told the officers he “found her like this.” The officers 

separated Mejia and Sophia, and Wellman detained Mejia in handcuffs. Wellman 

observed “some fresh wounds” on Mejia’s right knuckles. Mejia said the injury was an 

old one that had reopened; he had previously sustained the injury at work. Mejia was 

“[r]elatively calm” and did not appear under the influence of methamphetamine. 

Officer Wellman also spoke with Sophia. Wellman observed bruising and 

swelling on Sophia’s face and neck. Further, when being cross-examined about his 

report on the incident, Wellman said that he had noticed bruising on Sophia’s left wrist. 

Wellman testified that he did not recall seeing blood around Sophia’s face or coming 

from her nose. In his report, Wellman characterized the injuries he had observed as 
5

“apparent minor injuries.” To Wellman, Sophia did not appear to be under the influence 

of methamphetamine. 

Sophia told Officer Wellman that Mejia had been drinking and was upset because 

he had not been able to see his son that day. Sophia reported having been punched and 

kicked in the face and described “passing out.” She also said that, while in the hallway

with Mejia, he had threatened to kill her by throwing her down a flight of stairs. 

Wellman offered Sophia an emergency protective order, which she accepted. Wellman

also summoned emergency medical personnel. Sophia was transported to the hospital for 

treatment. Thereafter, Sophia had two black eyes and bruises on her face and neck. She 

also had bled from her nose and mouth as a result of the beating. Sophia said that, to her 

knowledge, her nose had never been broken prior to this incident. 

In addition to testifying about the incident with Mejia on June 19, Sophia testified

about an accusation of domestic abuse that she had subsequently made in September 

2016 against Eli Casas.5 At a preliminary hearing stemming from her accusation against 

Casas, Sophia testified that she (not Casas) had caused her injuries. At the time of her

testimony, Sophia believed a baby she had had recently was Casas’s child. 

At the time of Mejia’s trial in 2018, Sophia was married to Casas, but they were 

“not together.” Sophia admitted lying to police about Casas and to having previously 

told Casas that she had reported “bullshit” to the police about him having hurt her. She 

also acknowledged having written a letter to the district attorney’s office that said she had 

not been truthful about the incident with Casas.

6

On cross-examination, Sophia testified that she had an “on-and-off relationship” 

with Casas for the preceding four years. On a day in September 2016, she and Casas 

5 The district attorney provided Sophia use immunity for her testimony at Mejia’s 

trial about the Casas matter. 

6 At the close of the prosecution’s rebuttal case, the trial court took judicial notice 

(before the jury) of Eli Casas’s no-contest plea, on February 26, 2018, to a felony 

violation of section 273.5 against Sophia. (Evid. Code, § 452) 
6

argued, and she slapped him a couple of times. Casas did not hit or touch her. Sophia

explained that she scratched herself and “probably” threw herself to the ground in a 

tantrum, causing injury to herself. After that incident, Sophia told the police that Casas 

slapped, strangled her, and pushed her onto a bed and to the floor, causing injury to her 

knee. Sophia lied because she was high on methamphetamine and upset about 

harassment by the mother of Casas’s child.7 Sophia similarly lied to hospital personnel

about the incident with Casas. She admitted lying multiple times while testifying at 

Casas’s preliminary hearing. 

In addition to providing her own letter to the district attorney’s office, Sophia gave

the district attorney letters from other people about the Casas incident (including a letter 

from Leon Esquenazi, which Sophia denied writing or reading) and Casas’s employment 

information. She provided this material to the district attorney to help free Casas from 

jail. Sophia also spoke to and wrote a letter to an inmate named Michael Ochoa, whom

she knew through Casas and whom Casas said was “pretty much family.”

Richard Ferry, a licensed marriage and family therapist, testified as an expert in 

intimate partner violence and domestic violence. Ferry explained the characteristics and

effects of intimate partner violence, including that a victim of intimate partner violence 

may react differently to different abusive partners for various reasons. Further, victims 

may use drugs or alcohol to self-medicate (“stay numb”) or show loyalty to the abuser. 

Victims commonly recant their previous statements about abuse because of fear of 

retaliation, “continuing lingering attachment to the abuser,” and/or self-blame. Even 

when the abuser enters custody, he may be able to continue exerting control over the 

victim and influencing her to recant her narrative. The possibility of recantation is 

7 Sophia testified that methamphetamine “[j]ust keeps you up,” and denied that it 

caused her to hallucinate or become agitated, violent, or “[c]razy.” However, in a 

recorded call with Casas, she had agreed that when she is under the influence of 

methamphetamine, she “get[s] crazy.” 
7

greater where the victim and abuser share children or the victim is pregnant with the 

abuser’s child.

Ferry explained the three stages of the “cycle theory of violence” that

characterizes intimate partner battering: the tension-building phase, the acute violence 

phase, and the reconciliation phase. Ferry opined that abusive males often use 

strangulation not to kill, but rather to show that they can kill. And then they use that 

awareness as leverage in later coercive situations. 

Ferry considered hypothetical scenarios that mirrored the facts presented to the 

jury about the incidents involving Sophia, Mejia, and Casas, as well as Sophia’s 

recantation. Ferry opined that the hypothetical woman’s behaviors in the stated scenario

were consistent with a woman who had experienced intimate partner violence. Ferry 

stated further that a woman losing interest in a romantic relationship and nevertheless 

maintaining her recantation would be unusual, but her decision could be affected by “the 

potential bind of a child” or other factors not disclosed in the hypothetical. 

The trial court admitted a certified record of Mejia’s prior conviction for a 

violation of section 273.5. 

2. Defense Evidence

Michael Ochoa testified that he became friends with Eli Casas while incarcerated 

at the county jail between the end of 2016 and November 8, 2017. Ochoa also befriended 

and communicated with Sophia by telephone and letters. Ochoa did not have a 

relationship with Mejia prior to October 2017, when Ochoa contacted Mejia in jail and 

provided him information and letters that Ochoa had received from Casas and Sophia.

At some point while they were in jail together, Casas asked Ochoa to falsely state

that he (Ochoa) had overheard Mejia threaten Sophia “not to show up in court” and say
8

“If he ever got out, it will be all bad.”

8 Additionally, in a letter to Ochoa, Casas wrote 

that he would “send[] investigators to talk to [Ochoa]” so he could relay Mejia’s

supposed threat to them. Sophia also had told Ochoa once over the phone “to be ready, 

that [the investigators] were going to be coming to see [him] soon.” And, in a letter that 

Sophia had sent to Ochoa, she wrote, “ ‘As for that bitch, [Mejia], fuck him and

everything.’ ” 

Ochoa testified that he had initially considered doing what Casas had requested. 

However, after Ochoa’s mother died in September 2017, and after Ochoa started “doing 

the spiritual thing,” he decided not to assist Casas. Instead, Ochoa relayed the

information and letters he had received from Casas and Sophia to Mejia.

Mejia testified in his own defense. Mejia acknowledged that he had previously 

been convicted for domestic violence in 2011.

9

Mejia testified that, around 2006 or 2007, Sophia’s uncle, Mejia’s “business 

friend,” had asked Mejia to look after his 15-year-old niece Sophia (who was then 

pregnant) and other nieces and nephews while the uncle served a sentence in county jail. 

Later, in 2012 or 2013, Mejia and Sophia began dating. Mejia broke up with Sophia

around late 2013 due to “her lifestyle choices.”

In 2016, Mejia and Sophia resumed a relationship after Sophia’s sister told Mejia 

that “Sophia was in a really bad place.” The sister was scared Sophia “was going to hurt 

herself” and felt that Mejia “could intervene and help Sophia out.” Mejia got back in 

touch with Sophia. 

8 On cross-examination, Ochoa admitted previously telling Mejia’s investigator 

that Casas had asked him to say that Mejia said, “ ‘Tell that bitch she better not testify. 

She better change her story to the DA.’ ” 

9

In that prior prosecution, Mejia had proceeded to trial, but, after the victim 

testified, Mejia pleaded no contest to violations of sections 273.5 and 245, subdivision 

(a)(4), and admitted allegations regarding personal infliction of great bodily injury. 
9

Around May, Mejia discovered that Sophia had installed “spy ware” on his cell 

phone to monitor his text messages. Mejia told Sophia that he had been communicating 

with a former girlfriend and with Sophia’s sister. Mejia and Sophia spoke about and 

“resolved the issue,” and Sophia “moved forward from there.” 

By June, Mejia was staying over at Sophia’s apartment three or four times per 

week. Their dating relationship was not exclusive. Mejia felt he played a “role of 

protector” for Sophia and he “was trying to help her out and have her change her life.”

At that time, Sophia had two children who were living with their father, whom Sophia

had said “physically assaulted her, almost killed her, stomped her out,” and broke her 

nose. 

On June 19 (the date of the incident), Mejia purchased a used Mercedes Benz

while accompanied by Sophia. After buying the car, Mejia dropped Sophia off at her

apartment. He then picked up his father so they could go see Mejia’s son. Mejia and his 

father visited with Mejia’s son, but only for about an hour because the boy’s mother had 

made other plans. This made Mejia a “little sad,” but not mad. Mejia then returned to 

Sophia’s apartment earlier than he had originally anticipated. Upon his return, Mejia let 

Sophia know that he had not been able to take his son out to a children’s arcade and 

restaurant as he had planned. Mejia observed that Sophia was “very talkative,” “pacing 

around the apartment, going through cabinets,” and “listing the name of things that [they] 

need[ed] around the house.” Mejia told Sophia he did not have money, but he was “not 

really responding too much to her.” Sophia became upset and said, “Don’t blame it on 

me because your baby’s mommy is being a bitch.” Mejia “wasn’t in the mood” to talk to 

Sophia and “really didn’t want to hear it.” Mejia “knew” Sophia wanted money. Mejia 

told Sophia that he did not have any money and continued to “block[] her out.” Mejia 

eventually left the apartment for a short time to pick up some food. 

When he returned, Mejia sat down in the living room to eat his dinner. He was 

relaxed and calm. Mejia eventually noticed that Sophia was in the bathroom. Mejia ate 
10

and drank a beer. After about 30 to 45 minutes, Mejia knocked on the bathroom door. 

He asked Sophia what she was doing and told her to open the door. He suspected she 

was using methamphetamine. Eventually, Sophia opened the door and told Mejia he was 

being “fricking nosey.” Mejia observed “thick” “smoke clouds, meth clouds” in the 

bathroom. Mejia accused Sophia of “smoking dope” and asked her why she was using 

again—after having promised three days earlier to get clean. Sophia eventually admitted

to smoking drugs. Sophia said, “I was trying to get clean, but you f’d my friend, Tess.” 

Mejia denied sleeping with Sophia’s friend, but Sophia continued to accuse him of

having sex with Tess. Sophia also raised a question about Mejia having had sex with her

sister and mentioned Mejia’s communications with his former girlfriend.

10

Sophia became “more erratic” and was slamming things in the kitchen. Sophia

again accused Mejia of having sex with her best friend at the apartment, even though

Sophia allowed Mejia to stay there without contributing to the bills. Mejia responded by 

saying that he had given money to Sophia “here and there” when he could, but he could 

not give her more money because he was “broke right now.” He also questioned why 

Sophia needed money because she was receiving housing assistance and welfare 

payments. 

Sophia grabbed Mejia’s wallet from the kitchen counter, looked in it, and did not 

find any cash. She said, “that’s okay, because I know your pin, sweetheart.” Sophia 

grabbed Mejia’s keys from the counter and made her way to the door. Mejia “became 

alarmed.” He said, “where you going? You’re not going to leave with my keys, you’re 

not going to leave with my wallet. Give me my stuff back.” Sophia then “turned on” 

10 Mejia testified that he did not have “any sort of relationship with” Sophia’s 

friend Tess at the time of the incident and he was just friends with Sophia’s sister. He 

explained that Tess had once shown up at the apartment, sat down next to him, “was on” 

him, and “things went, kind of far, but not all the way,” because “after the touching” 

Mejia “stopped it” and “told her, we’re not going to do this,” and “she left the 

apartment.” 
11

Mejia. Sophia said “you f’d Tess, you slept with my sister. You’re a cheating bastard. I 

hate you.” Mejia responded, “Just give me my stuff and I’m going to leave. We’re 

done.” 

Sophia struck Mejia. He testified he had “blocked it. It caught [him] on [his] 

shoulder, on the side of [his] head.” Sophia struck Mejia “probably, three or four times,”

with a closed right fist. Mejia backed away from Sophia and told her to “calm down”

because she was “going to get the cops sent.” Sophia yelled, “I hope they do come. Send 

you to prison. You’re such a bastard.” Mejia responded, “just give me my keys, just give 

me my car. I’ll leave. I’m done with you. I don’t have to be here. I don’t want to be 

here no more. I’m done.” 

Sophia again raised the issue of money and said Mejia was “going to pay her,” 

because “things cost around []here” and he was “not just going to use her and leave her.” 

Mejia told Sophia he would pay her. He asked for his wallet and keys so he could go get 

money for her. Sophia refused. Mejia then attempted to grab his wallet from Sophia’s 

hand. Sophia began “swinging” at Mejia; he held out a hand to block her. At some 

point, as Sophia was “rushing at” Mejia, he “end[ed] up pushing her back, and [] 

hold[ing] her back against the door, restraining her against the door.” Sophia continued

“flailing” and “throwing blows.” When Sophia “came at [Mejia] with force,” his left 

hand “end[ed] up going around her [neck] area.” Mejia then released Sophia and asked 

for his things again. Sophia got “really upset” about Mejia putting his hands on her. 

Sophia said “you’re done, you’re done. And she came at [him] again.” 

Sophia tried to scratch Mejia. She was “swiping” at him with her right hand and 

“hitting” him with her left hand. Mejia grabbed Sophia again and pushed and held her 

against the door; he told her not to scratch him. While Sophia was swinging at Mejia, his 

wallet flew out of her hand. Mejia testified that he did not hit Sophia’s head or face with 

his closed fist; nor did he otherwise strike her face. 
12

Mejia stepped back and told Sophia to calm down. Mejia testified that he then did 

the following: “I go and I grab my wallet and I pick it up off the ground. And when I 

turned to pick it up off the ground I hear the front door open.”11 Sophia opened the door

and started running out with his keys. Mejia yelled that she was not going to take his car 

and “said, hey, give me my keys.” Mejia ran to Sophia “to prevent her from leaving with 

[his] keys. And she ends up whipping around to exit the apartment, and she bumps a 

little bit into the door frame of the door. . . . and runs out into the hallway.” 

Mejia ran into the hallway and continued to tell Sophia to give him his keys back. 

Sophia took “another swipe” at Mejia and tried to run around him. Mejia grabbed 

Sophia’s left wrist. Sophia was “yanking, trying to disentangle, herself from [Mejia], 

trying to break [his] grip, but [he] ha[d] a good grip of her hand.” Mejia told Sophia to 

give him his keys and that he was going to leave. Sophia yanked her hand again and 

cried out about being in pain. She sat down, complained about pain in her wrist, and 

dropped Mejia’s keys. Mejia picked up his keys and asked Sophia if she was all right.

Sophia said Mejia had broken her wrist, but she would not show it to him. The police 

arrived soon after. 

Mejia denied threatening to kill Sophia or threatening that something would 

happen to her if she called the police. Mejia testified that he was not “a hundred percent 

sure” how Sophia incurred the bruising to the right side of her neck and jaw, but “it was 

probably during when [he] was restraining her, trying to keep her off [him] with [his] 

hands.” He also testified that he did not know how Sophia received bruising to her right 

eye. Mejia said he did not recall ever touching Sophia’s face or nose. He also denied 

hitting Sophia in the face or head with his fist, knocking her down, kicking her in the face 

or head, pulling her hair and dragging her around the apartment, or choking her. Mejia

described Sophia’s demeanor and actions toward him as “[d]eranged.”

11 On cross-examination, Mejia testified he, in fact, “didn’t pick [his] wallet up.” 
13

Following the incident, the police took a picture of Mejia’s hand, which had a 

serious cut on two of the fingers. Mejia explained that he had incurred that injury during 

a work-related accident three to five days earlier. He did not seek medical attention or 

report the accident because his construction-work environment was “macho” and he was 

supposed to wear gloves but was not wearing them at the time of the accident.

On cross-examination, Mejia testified that he did not notice any bruises or 

scratches on his body after the incident with Sophia, even though he had been wearing a 

tank top. In addition, he did not report any injuries to police. Mejia explained, “Every 

blow that she threw, I blocked, or it hit me on the shoulders or my upper chest. And 

when she tried to scratch me, I didn’t allow her to scratch me.” Mejia said Sophia’s 

attack on him lasted “30 seconds, very brief, less than a minute.” As for Sophia’s 

injuries, he explained that Sophia “was swinging her arms, flailing. I don’t know, it 

happened so fast. I don’t know if she hit herself. The bruises, that is from me attempting 

to restrain her. . . . I can’t explain how she injured her nose.” 

Mejia acknowledged that he did not tell the police on the night of the incident any 

of what he had testified to at trial. Instead, he lied to the police about what had happened. 

Mejia explained that he lied to protect Sophia, not himself. He had “loyalty to her” and 

“didn’t want her to get in trouble []. for being on meth.” He was not in love with Sophia 

at that time, but he yelled out that he loved her when the police had them separated in the 

hallway outside the apartment. 

In addition to presenting the testimony of Ochoa and Mejia, Mejia’s defense 

counsel read to the jury prior testimony of Leon Esquenazi, a witness who was not 

currently available to testify before the jury. In that prior testimony, Esquenazi said he 

had prepared a letter for Eli Casas related to Casas’s then-pending domestic violence 

case. The letter was based on what Esquenazi had witnessed happen between Casas and 

Sophia. On cross-examination by the prosecutor, Esquenazi said Sophia had written the 

letter for him because he had bad handwriting; he subsequently signed it. He testified, “I 
14

was speaking and they were writing it for me.” In the letter, Esquenazi described Sophia 

arguing with and yelling at Casas, hurting herself, and “throwing a tantrum.” Esquenazi 

also heard Sophia slap Casas, but that was not described in the letter. On redirect 

examination by defense counsel, Esquenazi said the letter was based on his own 

information, “word for word,” and he “wrote it in [his] words first” but it was unreadable. 

Esquenazi said he witnessed Sophia “throw herself on the ground causing her own 

injuries.” 

3. Prosecution Rebuttal

Officer Wellman testified that, on the date of the incident between Mejia and 

Sophia (June 19), he separated them outside the apartment in accord with usual practice 

for domestic violence investigations. Though he detained Mejia “around the corner” 

from Sophia, Mejia yelled out to Sophia and peered toward her. Wellman pulled Mejia

back so he could not see Sophia, and Mejia yelled again. Wellman did not recall taking a 

wallet from Mejia after detaining him or seeing a wallet in the apartment building’s 

hallway. Further, a booking sheet for Mejia did not indicate that Mejia had a wallet when 

he was booked into jail. 

II. DISCUSSION

Mejia claims: (1) the trial court erred by failing to instruct sua sponte on the 

affirmative defense of defense of property for count 2; (2) alternatively, his defense 

counsel performed ineffectively by failing to request an instruction on defense of 

property; (3) the trial court erred by failing to instruct sua sponte on unanimity for count 

2; (4) alternatively, his defense counsel performed ineffectively by failing to request a 

unanimity instruction; (5) the cumulative effect of the trial court’s instructional errors 

was prejudicial; and (6) the conviction for misdemeanor assault on count 1 is barred by 

double jeopardy protections because simple assault is a lesser-included offense of count 

2.
15

We address Mejia’s claims in turn, grouping the two alternative ineffective 

assistance claims with the related claims of instructional error.

A. Defense of Property Instruction

Mejia contends the trial court erred by not instructing the jury sua sponte on the 

defense of property for count 2. Alternatively, Mejia asserts that, if this court concludes 

he forfeited his claim concerning the defense of property instruction, his defense counsel 

performed ineffectively by failing to request the instruction. The Attorney General

responds that, regardless whether substantial evidence supported the defense of property 

instruction, any error in failing to instruct the jury on that defense did not prejudice 

Mejia. Further, the Attorney General asserts that Mejia fails to demonstrate his defense 

counsel performed deficiently or that he was prejudiced by defense counsel’s 

performance. 

1. Additional Background

As relevant here, the information charged Mejia in count 1 with assault by means 

likely to produce great bodily injury (§ 245, subd. (a)(4)) and in count 2 with infliction of 

corporal injury with a specified prior conviction within seven years (§ 273.5, subds. (a), 

(f)(1)). As to both counts, the information also alleged personal infliction of great bodily 

injury (§§ 12022.7, subd. (e), 1203, subd. (e)(3)). 

During trial, the trial court and parties discussed the proposed jury instructions. 

Mejia requested instructions on lesser-included offenses for counts 1 and 2, self-defense, 

and “fabrication of evidence.” Mejia did not request a defense of property instruction. 

The trial court subsequently included in its final instructions those that Mejia had 

requested. More specifically, the court instructed on simple assault (§ 240), as a lesserincluded offense for counts 1 and 2, and battery (§ 243(e)(1)), as a lesser included offense 

to count 2. In addition, regarding unanimity for count 1, the court instructed, “You must 

not find the defendant guilty of assault by means of force likely to produce great bodily 

injury, as alleged in Count One, unless you all agree that the People have proved, 
16

specifically, that the defendant committed that offense by acts of choking.” The 

unanimity instruction also addressed counts 3 and 4 but not count 2. Mejia did not 

request an instruction on unanimity for count 2. 

In his closing argument, the prosecutor explained that count 1 was “for any act of 

choking” Sophia and, further, the attendant great bodily injury enhancement applied “to 

the notion that she passed out, or in medical terms, lost consciousness.” On the other 

hand, the prosecutor described count 2 as applying to the following: “[A]nything that is 

not choking is a separate thing. Specifically, it’s going to be to Count Two.” 

The prosecutor argued further for count 2: “Very similar to the first count, in that 

the issue is going to come down to Sophia versus a felon. It’s going to come down to, 

what do you believe happened in that apartment. This is for everything that happened 

that is not choking. So it’s hits, it’s kick, it’s hair pulling, as long as it results in a 

traumatic condition. . . . [¶] So as depicted in [a photographic exhibit], . . . it is the 

bruises to her neck. It is the scrapes. It is the swelling that’s been described -- not just by 

her and in the medical records and by Officer Wellman, but by [Mejia], himself, when he 

looks at these photos. [¶] But in this, in this, as well, there is an allegation that he, in 

fact, personally inflicted great bodily injury upon her. Now, again, it has to be more than 

[] minor or moderate harm. [¶] So a traumatic condition can be minor. Personally 

inflicting great bodily injury has got to be greater than minor or moderate harm. And I 

told you in the opening statement, this is for breaking her nose. . . . [Y]ou have medical 

records.” The prosecutor also reiterated: “The personal infliction of great bodily injury 

only applies to the broken nose. For the charge, itself, . . . it is any of the injuries 

depicted. Any wound or other bodily [in]jury. Again, we know from Sophia what 

happened.” 

In addition, when discussing self-defense, the prosecutor argued: “Future harm is 

not enough. It has to be imminent. And it’s not defense of property. It’s defense of self. 

So it’s not, oh, I’m worried about what’s going to happen to my new Benz. It’s about 
17

what’s going to physically happen to me. There are no clues to self-defense in the 

victim’s testimony. There is an absolute absence of clues in Officer Wellman’s 

testimony, when you think about [Mejia’s] demeanor . . ., [his] statement . . ., and [his]

physical condition.” The prosecutor asserted further that “there’s no evidence to back

[self-defense] up, at all, other than [Mejia’s] words.” 

The prosecutor argued further: “[Mejia] is making a claim that somehow, in his 

self-defense, when he is not hurt, at all, she ends up with a broken nose, . . . big bruises 

on her neck . . . swollen eye. She’s got all these other injuries that everyone has detailed. 

And he, of course, has nothing.” The prosecutor emphasized the unbelievability of 

Mejia’s self-defense claim: “[T]he evidence shows[] [Sophia] suffered injuries that could 

not possibly have been [caused] in a self-defense case. And we know he didn’t advance 

that with the police at first. He tried to claim she was beaten up by someone else. And 

the medical records show a broken nose, and abrasions of cuts [sic] and swelling that are 

far more than this 30 seconds of Mr. Mejia restraining her and her flailing around.” 

Mejia’s defense counsel argued that the case was about “one word against another 

word,” i.e. Sophia’s version of events versus Mejia’s. Counsel maintained that the jury 

had to have “an abiding conviction to the truth of the testimony of Sophia . . . to convict 

Mejia.” Counsel attacked Sophia’s credibility extensively, including based on her 

behavior while testifying, her personal interest in the outcome, the inconsistencies 

between her current testimony and her earlier statements to Officer Wellman and the

documentation regarding her injuries, and the evidence of her pattern of deceit and 

perjury. Counsel asked the jurors, “Can you have an abiding conviction about someone’s 

testimony when . . . there’s 89 different stories about a couple different events? No, you 

can’t.” Counsel also juxtaposed Sophia’s failure to provide a reason for Mejia attacking 

her with Mejia’s “pretty detailed account of how everything unfolded.” 

Regarding self-defense, defense counsel suggested that “the lesser included 

offense of battery could come” into play if the jurors believed Mejia “maybe [] used a 
18

little too much force . . . at some point, and it’s unclear what caused what injuries.” 

Counsel reminded the jurors of the prosecution’s burden to prove Mejia did not act in 

self-defense and urged the jurors to “view” Mejia’s testimony “with binoculars of an 

abiding conviction.” Counsel contrasted Sophia’s and Mejia’s testimony and argued 

Mejia provided “credible details of an argument and assaultive behavior, by which he 

reasonably defends.” 

Defense counsel argued further that Officer Wellman was mistaken about Mejia’s 

knuckle wounds being fresh. Counsel also questioned Sophia’s injuries and maintained

that Sophia’s injuries were minor and consistent with Mejia’s testimony, not her own. In 

particular, counsel noted Sophia’s denial of a loss of consciousness documented in the 

ambulance records. Regarding the injury to Sophia’s nose, counsel asserted there was 

reasonable doubt because the hospital records were “unclear . . . [on] whether this is an 

old fractured nose or an acute fractured nose.” 

Defense counsel concluded his argument, “Considering the overall testimony, 

demeanor and manipulative actions, I suggest that the only reasonable verdict is not 

guilty. There’s just a lack of quality of evidence in this case. And as the law says, unless 

the evidence proves the defendant is guilty beyond a reasonable doubt, he is entitled to an 

acquittal, and you must find him not guilty.” 

In rebuttal, the prosecutor argued, among other things, that the hospital records 

established Sophia had a nasal fracture, bleeding in her nostrils, and “ ‘nasal tenderness 

and swelling.’ ” The prosecutor questioned how Sophia could have incurred such an 

injury under Mejia’s version of the altercation. The prosecutor asserted that Mejia first 

punched Sophia in the bedroom because she had said “[w]hat did you say” to a “man 

upset about not seeing his kid enough.” The prosecutor concluded his rebuttal argument 

stating that Mejia had lied to the police and subsequently lied to the jury: “Why did he 

feel the need to lie to you? Because the pictures can’t be overcome. [Sophia] didn’t walk 

into his hands or run into his hands and cause the giant bruise on her neck, or the broken 
19

nose, or the black eye, or the swelling to the face, or any of the cuts and stuff you see, or 

the bleeding in her nose. None of that fits.” 

2. Legal Principles

A trial court has a sua sponte duty to instruct regarding an affirmative defense that 

is not inconsistent with the defendant’s theory of the case if substantial evidence supports

the defense. (People v. Salas (2006) 37 Cal.4th 967, 982 (Salas).) “In determining 

whether the evidence is sufficient to warrant a jury instruction, the trial court does not 

determine the credibility of the defense evidence, but only whether ‘there was evidence 

which, if believed by the jury, was sufficient to raise a reasonable doubt.’ ” (Ibid.) 

Doubts whether evidence is sufficient to warrant an instruction on a particular defense 

theory should be resolved in the defendant’s favor, but the trial court need not give the 

instruction where the supporting evidence is insubstantial. (People v. Barnett (1998) 17 

Cal.4th 1044, 1145.) On appeal, the appellate court independently reviews whether the 

trial court erred by failing to instruct on a defense. (See People v. Simon (2016) 1 Cal.5th 

98, 133; People v. Manriquez (2005) 37 Cal.4th 547, 581.)

Defense of property is codified in Civil Code section 50, which states in relevant 

part, “Any necessary force may be used to protect from wrongful injury the person or 

property of oneself.” The corresponding criminal jury instruction for that defense is 

CALCRIM No. 3476.12

12 CALCRIM No. 3476 provides: “The owner [or possessor] of (real/ [or] 

personal) property may use reasonable force to protect that property from imminent 

harm. [A person may also use reasonable force to protect the property of a (family 

member/guest/master/servant/ward) from immediate harm.] [¶] Reasonable force means 

the amount of force that a reasonable person in the same situation would believe is 

necessary to protect the property from imminent harm. [¶] When deciding whether the 

defendant used reasonable force, consider all the circumstances as they were known to 

and appeared to the defendant and consider what a reasonable person in a similar 

situation with similar knowledge would have believed. If the defendant’s beliefs were 

reasonable, the danger does not need to have actually existed. [¶] The People have the 
20

Regarding the standard of prejudice that we must apply to an erroneous failure to

instruct on the defense of property, the California Supreme Court has not spoken on that 

question or more generally on the prejudice standard for a failure to instruct on an 

affirmative defense. (Salas, supra, 37 Cal.4th at p. 984.) The potentially applicable 

standards are: the test of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), 

which applies to federal constitutional error; or the test of People v. Watson (1956) 46 

Cal.2d 818 (Watson), which applies to state law error. (Salas, at p. 984.) California

Courts of Appeal have concluded that the less-stringent Watson standard applies to a 

failure to instruct on self-defense, not the harmless beyond a reasonable doubt standard

under Chapman. (People v. Villanueva (2008) 169 Cal.App.4th 41, 52–53; People v. 

Elize (1999) 71 Cal.App.4th 605, 616.) Under Watson, we reverse only when it is 

reasonably probable that a result more favorable to the defendant would have been 

reached in the absence of the error. (Watson, at p. 836.)

In the present case, Mejia argues that he was prejudiced under Watson and 

Chapman, without specifically addressing which standard applies. The Attorney General 

argues for the Watson test. We agree that the Watson standard applies to the assessment 

of prejudice regarding Mejia’s claim of instructional error. (See People v. Watt (2014) 

229 Cal.App.4th 1215, 1219 (Watt) [collecting cases noting that Watson applies to failure 

to instruct on a lesser included offense, mistake of fact, and self-defense]; see also People 

v. Beltran (2013) 56 Cal.4th 935, 955 [“ ‘ “[M]isdirection of the jury, including incorrect, 

ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal 

constitutional error are reviewed under the harmless error standard articulated” in 

Watson.’ ”].)

burden of proving beyond a reasonable doubt that the defendant used more force than 

was reasonable to protect property from imminent harm. If the People have not met this 

burden, you must find the defendant not guilty of [] <insert crime>.”
21

“In applying the Watson standard, we may look to the other instructions given, as 

well as whether the evidence supporting the existing judgment is so relatively strong, and 

the evidence supporting a different outcome is so comparatively weak, that there is no 

reasonable probability that the error affected the result.” (Watt, supra, 229 Cal.App.4th 

at p. 1220.) “We also consider . . . the jury’s findings[] and the closing arguments of 

counsel.” (People v. Larsen (2012) 205 Cal.App.4th 810, 831 (Larsen).) 

To demonstrate that defense counsel was constitutionally ineffective, a defendant

must establish both that counsel’s performance was deficient and that prejudice resulted 

from counsel’s error. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) 

As to the first element of Strickland, the defendant bears the burden of demonstrating by 

a preponderance of the evidence that counsel’s performance fell below an objective 

standard of reasonableness. (In re Thomas (2006) 37 Cal.4th 1249, 1257.) To satisfy the 

prejudice element, the defendant must show “that there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result would have been more favorable to 

defendant, i.e., a probability sufficient to undermine confidence in the outcome.” (In re 

Ross (1995) 10 Cal.4th 184, 201.)

3. Analysis

Mejia contends that defense of property is an affirmative defense to a violation of 

section 273.5 and, because there was substantial evidence supporting this consistent 

defense, the trial court was required to instruct the jury on it. The Attorney General does 

not challenge Mejia’s contention. In light of the Attorney General’s decision not to 

contest Mejia’s claim the trial court erred by failing to instruct sua sponte on the defense 

of property, we will assume arguendo that the trial court erred when it neglected to 

instruct the jury on that defense for count 2. 

Turning to the issue of prejudice under Watson, Mejia contends: “Had the court 

instructed on defense of property, the jury would likely have found [Mejia] not liable for 

injury to [Sophia]’s wrist, based on the favorable testimony regarding [Mejia]’s keys.” 
22

Mejia asserts that the jurors “appeared to find the controversy regarding [Mejia]’s wallet 

significant,” because they requested a readback of Mejia’s testimony about his retrieval 

of the wallet. Further, Mejia notes that the prosecutor did not challenge his testimony 

about recovering his keys from Sophia in the hallway outside the apartment. In addition, 

Mejia maintains the jury “evidenced skepticism of [Sophia]’s testimony regarding the 

fight in the apartment.” The purported skepticism is grounded in their acquittal on count 

1—in the face of prosecution evidence that Mejia choked Sophia—and the not-true 

finding for great bodily injury on count 2—in the face of prosecution evidence that Mejia 

punched Sophia’s nose and kicked her face, causing a broken nose. Mejia maintains: 

“[B]ecause the jury found [Sophia]’s account of the fight in the apartment unconvincing, 

it likely found that the prosecution had failed to prove absence of self-defense as to the 

swelling on [Sophia]’s neck and jawline,” and “[t]he conviction for assault (the lesserincluded offense to count 1), therefore, likely indicated the jury’s finding that [Mejia] had 

applied excessive force to [Sophia]’s neck and jawline to defend himself.” 

We agree with Mejia that the most reasonable inference from the verdicts—in 

light of the jury instructions and counsels’ arguments—is that the jury concluded that the 

prosecution did not prove beyond a reasonable doubt that Mejia choked Sophia or broke 

her nose. The prejudice inquiry, therefore, focuses on whether a defense of property 

instruction would likely have affected the jurors’ assessment of Mejia’s criminal 

responsibility for Sophia’s other injuries. 

In his argument that prejudicial error occurred, Mejia focuses on the evidence 

about the injury to Sophia’s wrist. However, having reviewed the record, we believe it is 

unlikely that the jury based its verdict for count 2 on that injury. Sophia did not testify 

that Mejia grabbed or injured her wrist in the hallway. She testified only that Mejia

followed her out of the apartment, grabbed her by her hair, pulled her, and punched her in 

the head in the hallway. In addition, the prosecutor did not highlight the wrist bruising 

when arguing for Mejia’s guilt on count 2. Rather, the prosecutor maintained that count 
23

2 “come[s] down to” what the jurors “believe happened in that apartment” and mentioned 

specifically “hits,” “kick,” “hair pulling,” “bruises to her neck,” “scrapes,” “swelling,” 

and, for the great bodily injury allegation, “breaking her nose.” While we acknowledge 

that the prosecutor also told the jury that count 2 “is for everything that happened that is 

not choking,” “ ‘[t]he question is not what a jury could have done, but what a jury would 

likely have done if properly instructed.’ ” (Larsen, supra, 205 Cal.App.4th at p. 831.) 

There was ample evidence demonstrating that Mejia inflicted corporal injury in violation 

of section 273.5, irrespective of the wrist bruising. 

The testimony provided by Sophia and Officer Wellman, in conjunction with the 

photographs and medical records, substantiated that Mejia punched and kicked Sophia in 

the face and caused bruises to her jaw and neck, black eyes, and a bloody nose and 

mouth. Officer Wellman also observed “some fresh wounds” on Mejia’s right knuckles, 

providing corroboration for Sophia’s account that Mejia had punched her. In addition, 

Mejia had previously been convicted of domestic violence, which the jury was permitted 

to use to conclude Mejia had a propensity to commit such violence and had committed 

the crime charged in count 2. In our judgment, the totality of the evidence provided 

significant support for Mejia’s conviction on count 2 and does not suggest that the 

conviction was based on any injury to Sophia’s wrist. 

Nevertheless, even if the jury may have considered the wrist bruising when

deciding whether to convict Mejia on count 2, that does not compel us to conclude that 

Mejia, in fact, was prejudiced by the lack of instruction on defense of property. If the 

trial court had instructed the jurors with CALCRIM No. 3476, it is likely the jurors would 

have found that the prosecution proved, beyond a reasonable doubt, that Mejia “used 

more force than was reasonable to protect property from imminent harm.” (CALCRIM 

No. 3476.) Even assuming arguendo that Sophia’s act of grabbing Mejia’s keys from the 

kitchen counter and leaving the apartment with them would reasonably cause a person to 
24

believe that the keys and car needed to be protected from imminent harm, it is not likely 

in this case that Mejia would have been acquitted for defending his property.

To acquit Mejia based on that defense, the jurors would have had to focus on the 

keys and wrist bruising, accept Mejia’s explanation for the wrist bruising, conclude that 

reasonable force had caused the wrist bruising, and reject the other evidence concerning

Sophia’s traumatic injuries or find that Mejia acted in self-defense with respect to those 

injuries. The jury’s rejection of Mejia’s self-defense theory for count 2 (for which they 

did receive an instruction) provides a strong indication that the jurors believed Mejia 

“used more force than was reasonable” during the incident. (See CALCRIM No. 3470.) 

In our judgment, it is not reasonably likely that the jury (as Mejia suggests) “convicted 

[him] on count 2 for inflicting a traumatic injury to [Sophia]’s wrist, despite having 

accepted [his] self-defense claim regarding [Sophia]’s facial injuries.” Rather, we 

conclude it is not reasonably probable Mejia’s jury would have acquitted him of count 2 

or returned a lesser verdict even if it had it been instructed on the defense of property.

For the same reasons, we are not persuaded that Mejia has demonstrated prejudice 

for his claim of ineffective assistance of counsel. As a threshold matter, we note that 

forfeiture of Mejia’s claim of instructional error is not at issue because we have assumed 

the trial court had a sua sponte duty to instruct on defense of property. Nevertheless, for 

the reasons discussed above, we conclude that, had the jury been instructed on the 

defense of property upon defense counsel’s request, there is no reasonable probability 

that the result on count 2 would have been more favorable to Mejia. 

In sum, we reject Mejia’s claims concerning instructional error on the defense of 

property.

B. Unanimity Instruction

Mejia contends the trial court erred by failing to instruct the jury sua sponte on 

unanimity for count 2. Alternatively, Mejia asserts that, if this court concludes he 

forfeited his argument concerning the lack of such an instruction, his defense counsel 
25

performed ineffectively by failing to request the instruction. The Attorney General 

responds that the trial court was not required to instruct on unanimity here because the 

continuous-course-of-conduct exception applies. The Attorney General further asserts

that, even if the jury should have been instructed regarding unanimity, the trial court’s 

failure to do so was harmless error under Chapman. Finally, the Attorney General 

maintains Mejia has failed to demonstrate that his defense counsel was prejudicially 

ineffective for failing to request a unanimity instruction for count 2. 

1. Additional Background13

Pretrial, the prosecutor submitted a list of proposed jury instructions that included 

a unanimity instruction. When the trial court and parties discussed the proposed jury 

instructions during trial, they reviewed a unanimity instruction based on CALCRIM No. 

3502 (“Unanimity: When Prosecution Elects One Act Among Many”). During the 

discussion, the prosecutor noted his election regarding acts of choking for count 1 and 

said the jurors “can’t find another way for it to have been done.” Defense counsel 

responded, “And you don’t have Count Two in [the instruction].” The court responded, 

“We don’t need it for Count Two. That’s a continuous course of conduct.” 

The trial court ultimately instructed the jury on unanimity for counts 1, 3, and 4, 

but not count 2.

After trial, Mejia—through his newly appointed counsel—filed a motion for new 

trial. In the motion, Mejia argued that the trial court should have instructed the jury on 

unanimity as to count 2, because the continuous-course-of-conduct exception to the 

unanimity rule did not apply under the facts of this case. Mejia asserted that “he offered 

different defenses for the acts that were described to the jury” and the “acts in this case 

were discrete and the jury could have distinguished them.” More specifically, 

13 The background information discussed in section II.A.1., ante, is also relevant to 

Mejia’s claims regarding the lack of a unanimity instruction. We rely on this background 

information as necessary when considering Mejia’s unanimity claims.
26

Mejiaclaimed that he “testified regarding the injuries the alleged victim suffered and 

explained that he caused them in self-defense. All except the injury to her wrist. He 

conceded that he grabbed her wrist, but not in self-defense.” The prosecutor opposed 

Mejia’s motion. 

The trial court held a hearing on Mejia’s new trial motion and denied it. The trial 

court stated, inter alia: “The prosecution made clear that the choking act was as to Count 

One. [Mejia] now asserts he caused a number of injuries to [Sophia], but all of them 

were in self-defense except the injury to her wrist. But [Mejia] did not offer a different 

defense to the wrist injury. In fact, [Mejia] testified that [Sophia] was leaving with his 

keys and took a swipe at him and tried to run around him, so [Mejia] grabbed her wrist. 

No unanimity instruction was required.” 

2. Legal Principles

The state and federal constitutions require unanimous verdicts. (People v. Russo

(2001) 25 Cal.4th 1124, 1132 (Russo); Ramos v. Louisiana (2020) ___ U.S. ___ [140 

S.Ct. 1390, 1397].) “As a general rule, when violation of a criminal statute is charged 

and the evidence establishes several acts, any one of which could constitute the crime 

charged, either the state must select the particular act upon which it relied for the 

allegation of the information, or the jury must be instructed that it must agree 

unanimously upon which act to base a verdict of guilty.” (People v. Jennings (2010) 50 

Cal.4th 616, 679 (Jennings).) “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.’ ” (Russo, at 

p. 1132.) “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.” (Ibid.)
27

Thus, there are several exceptions to the general rule. “For example, no unanimity 

instruction is required if the case falls within the continuous-course-of-conduct exception, 

which arises ‘when the acts are so closely connected in time as to form part of one 

transaction’ [citation], or ‘when the statute contemplates a continuous course of conduct 

or a series of acts over a period of time.’ [Citation.] There also is no need for a 

unanimity instruction if the defendant offers the same defense or defenses to the various 

acts constituting the charged crime.” (Jennings, supra, 50 Cal.4th at p. 679.)

Defense counsel’s failure to request a unanimity instruction does not forfeit the 

issue on appeal. (People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8 (Carrera).) “Even 

absent a request, the court should give the instruction ‘where the circumstances of the 

case so dictate.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1199.) Appellate courts

review de novo whether the trial court erred in failing to give a unanimity instruction. 

(People v. Hernandez (2013) 217 Cal.App.4th 559, 568.)

3. Analysis

Mejia asserts that, because the prosecutor argued the jury could rely on 

“everything that happened that is not choking” (which would include the wrist bruising)

for count 2, “this court should find that the prosecutor made no effective election between 

conduct in the apartment and conduct in the apartment hallway, and thus, the court had a 

duty to instruct sua sponte on unanimity as to count 2.” Mejia further maintains that he 

testified to “an act separated in time from the acts in the apartment at issue, and tendered 

different defenses regarding the act in the hallway and the acts in the apartment, and the 

jury had a reasonable basis to distinguish between the acts.” 

We are not persuaded the trial court here had a duty to instruct on unanimity for 

count 2. Initially, Mejia and the Attorney General state conflicting positions regarding 

whether, for the purposes of unanimity, section 273.5 itself contemplates a continuous 

course of conduct or a series of acts over a period of time. 
28

Mejia urges us to decide this question by relying on a decision of another panel of 

this court in People v. Johnson (2007) 150 Cal.App.4th 1467, as well as People v. Lueth

(2012) 206 Cal.App.4th 189, 192 (Lueth). In Johnson, the panel concluded that a 

defendant may be charged or convicted of multiple counts under section 273.5, “where 

multiple applications of physical force result in separate injuries” to the victim during a 

single incident. (Johnson, at p. 1477.) Johnson, however, did not address any question

regarding the need for a unanimity instruction. In Lueth, the Court of Appeal observed 

that “the case law does not clearly or consistently define the unit of prosecution under 

Penal Code section 273.5” for inflicting corporal injury on a partner. (Lueth, at p. 192.)

By contrast, the Attorney General relies on People v. Thompson (1984) 160 

Cal.App.3d 220 to argue that section 273.5 contemplates a continuous course of conduct. 

In Thompson, the Court of Appeal concluded that section 273.5 is an offense of 

continuous conduct for purposes of a unanimity instruction.14 (Id. at pp. 224–226.)

In the present case, we need not decide whether section 273.5 is generally a crime 

of continuous conduct for purposes of a unanimity instruction, because the continuouscourse-of-conduct exception may also arise when the specific facts demonstrate that

“ ‘ “the acts alleged are so closely connected as to form part of one transaction.” ’ ’’ 

(People v. Williams (2013) 56 Cal.4th 630, 682 (Williams).) “Specifically, ‘[t]he 

“continuous conduct” rule applies when the defendant offers essentially the same defense 

to each of the acts, and there is no reasonable basis for the jury to distinguish between 

them.’ ’’ (Ibid.) “ ‘This exception “ ‘is meant to apply not to all crimes occurring during 

a single transaction but only to those “where the acts testified to are so closely related in 

time and place that the jurors reasonably must either accept or reject the victim’s 

testimony in toto.” ’ ” ’ ” (Lueth, supra, 206 Cal.App.4th at p. 196.)

14 The court in Lueth did “not decide whether Thompson or Johnson is correct,” 

because the outcome in Lueth was an affirmance regardless of the differing conclusions 

in those cases. (Lueth, supra, 206 Cal.App.4th at p. 192.)
29

Here, the prosecution’s evidence established that Mejia attacked Sophia over a 

brief period.

15 The prosecutor framed the issue of Mejia’s guilt on count 2 as “com[ing] 

down to Sophia versus a felon” and what the jurors “believe[d] happened in that 

apartment.” The prosecutor also referenced generally “everything that happened that is

not choking” and articulated specific acts and injuries, not including the wrist 

grabbing/bruising elicited by the defense. Accordingly, the prosecution evidence and 

argument presented the crime as an incident that occurred continuously over a short 

period of time in a limited space and, as such, formed part of one transaction. 

Further, at trial, Mejia offered “ ‘essentially the same defense to each of the 

acts.’ ” (Williams, supra, 56 Cal.4th at p. 682.) Mejia testified that Sophia repeatedly 

attacked him inside the apartment and did so again in the hallway. Mejia denied 

punching or kicking Sophia. He claimed that he defended himself from Sophia’s attacks

and tried to restrain her, thereby causing her bruises. Mejia also said he asked Sophia 

several times to give him his keys and wallet while still inside the apartment, and he tried 

to grab his wallet from Sophia before it flew out of her hand. According to Mejia, when

he ran into the hallway after Sophia, he “continue[d] to tell her, hey, give me my keys.” 

When he caught up to her, he again asked for his keys. Sophia then “t[ook] another 

swipe” at him and tried to run around him. Mejia then grabbed her wrist and again said

“give me my keys.” 

Under these facts (as testified to by Mejia himself), Mejia’s attempt to regain

possession of his keys and his grabbing of Sophia’s wrist in the hallway were not discrete

circumstances. Rather, those actions were part of an ongoing effort begun inside the 

apartment to get back his keys after Sophia had grabbed them and his wallet from the 

kitchen counter. Mejia’s actions in the hallway after Sophia took “another swipe” at him

15 Mejia, too, testified that Sophia’s attack on him was “very brief, less than a 

minute.” 
30

fit within his continuing self-defense narrative and was not portrayed as behavior that 

was distinct from the rest of the altercation. 

Moreover, like the prosecutor, Mejia’s defense counsel argued that the jury’s 

decision should turn on whom they believed, Sophia or Mejia. In addition, when arguing 

for self-defense, defense counsel contrasted Mejia’s “credible details of an argument and 

assaultive behavior, by which he reasonably defends” against Sophia’s “story of six to 

seven, seven to eight facial head punches, kicks, and separate acts of strangulation, and 

all the blood that she says, while Officer Wellman doesn’t see any.” Counsel asserted, 

“If this were true, the results would have been different, would have been much worse.” 

Through these arguments, defense counsel urged the jury to accept Mejia’s defense for

the entire incident and reject Sophia’s version of events.

Having reviewed Sophia’s and Mejia’s testimony and the closing arguments of the 

parties, we conclude that Mejia offered essentially the same defense to all the acts and

blamed Sophia’s own “assaultive behavior” for all her injuries. Under these 

circumstances, the continuous-course-of-conduct exception applies, and the trial court 

was not required to instruct the jury on unanimity for count 2. (See People v. Lopez

(2005) 129 Cal.App.4th 1508, 1534.)

Regarding ineffective assistance of counsel, Mejia argues that, “[i]n the event this 

court finds that counsel forfeited [Mejia]’s argument regarding the absence of instruction 

on unanimity as to count 2,” his defense performed ineffectively by failing to request that 

instruction. As explained above, defense counsel’s failure to request a unanimity 

instruction does not forfeit an issue regarding whether the trial court should have given 

that instruction sua sponte. (Carrera, supra, 49 Cal.3d at p. 311, fn. 8.) Thus, we have 

not applied the doctrine of forfeiture to Mejia’s claim of instructional error. Hence, we 

have no reason in this appeal to examine whether defense counsel’s failure to request a 

unanimity instruction fell below an objective standard of reasonableness. Accordingly, 

we will not consider Mejia’s alternative claim of ineffective assistance of counsel.
31

For these reasons, we conclude the trial court was not required to provide the jury 

a unanimity instruction for count 2. Accordingly, we reject Mejia’s claims of 

instructional error.

C. Cumulative Error

Mejia contends that the cumulative effect of the errors he asserts concerning the 

trial court’s failure to instruct sua sponte on the defense of property and unanimity 

amounts to reversible and prejudicial error.

“ ‘The “litmus test” for cumulative error “is whether defendant received due 

process and a fair trial.” ’ ” (People v. Poletti (2015) 240 Cal.App.4th 1191, 1217.) 

Here, we assumed arguendo that the trial court erred when it failed to instruct the jury on 

the defense of property for count 2. We determined, however, that the error was not 

prejudicial. In addition, we found no error in the trial court’s failure to instruct on 

unanimity for count 2. Having assumed one instructional error and found no error on the

other instructional claim, we do not have multiple errors to cumulate. Accordingly, we 

reject Mejia’s claim of cumulative error.

D. Double Jeopardy as to Counts 1 and 2

Mejia claims that the federal and state constitutional protections against double 

jeopardy “require dismissal of count 1 because the same act proved the assault in count 1 

and the infliction of corporal injury offense in count 2.” More specifically, Mejia argues 

that, if this court agrees with the assertion made in the prosecutor’s opposition to the new 

trial motion that “ ‘the People never argued that the grabbing of a wrist would suffice for 

[count 2],’ ” then we should dismiss count 1, as a lesser included offense of count 2. 

Mejia reasons that, for count 1, the jurors convicted him of simple assault based on his 

“gripping of [Sophia]’s neck (but not choking her unconscious),” which in turn bruised 

Sophia’s neck. Mejia asserts further that this act also proved infliction of corporal injury 

for count 2 given that the prosecutor argued count 2 encompassed “the bruises to 

[Sophia’s] neck.” 
32

The Attorney General responds that Mejia forfeited his double jeopardy claim by 

failing to raise it in the trial court. In addition, the Attorney General argues that Mejia’s 

claim lacks merit because double jeopardy protections apply only to successive 

proceedings (not “one information, one trial, and one prosecution”) and, nevertheless, the 

prosecutor’s closing argument distinguished between the choking as the factual basis for 

count 1 and the other violent acts and resulting injuries as the factual basis for count 2. 

Regarding forfeiture, Mejia replies that his current double jeopardy claim is not 

subject to forfeiture because vacatur of a lesser included offense conviction is required on 

appeal if he also was convicted of the greater offense. 

Regardless whether Mejia may have forfeited his current claim, we are not 

persuaded that his conviction on count 1 was necessarily based on the same act (i.e., 

“gripping of [Sophia]’s neck) as that underlying count 2. The evidence and argument did 

not ascribe any one act as the source of Sophia’s neck bruises. Although the jurors may 

have considered the bruises on Sophia’s neck when deciding Mejia’s guilt on count 2, 

that injury was not directly tied to Mejia gripping Sophia’s neck (the factual basis for 

count 1). Rather, in accord with the prosecutor’s argument, the “hits” and “kick” could 

have served as the basis for the neck bruises for count 2, as well as the other traumatic 

conditions like the swelling, bruises, and abrasions on Sophia’s face and eyes. Hence, 

Mejia’s claim falters on its factual premise, and we conclude that the convictions on 

count 1 and count 2 were not based on the same act.

For these reasons, we reject Mejia’s claim that count 1 should be dismissed. 

III. DISPOSITION

The judgment is affirmed. 
______________________________________

Danner, J.

WE CONCUR:

____________________________________

Elia, Acting P.J.

____________________________________

Grover, J.

H046662

People v. Mejia