Banuelos

A jury convicted Fernando Banuelos of assault with a deadly weapon by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) The jury also found true allegations that Banuelos personally used a deadly weapon in the commission of the assault (§ 1192.7, subd. (c)(23)), and personally inflicted great bodily injury upon the victim, who was not an accomplice of that offense (§ 12022.7, subd. (a)). The trial court sentenced Banuelos to a total prison term of five years, consisting of the lower term of two years for the assault with a deadly weapon, and three years consecutive for the personal infliction of great bodily injury enhancement.

Banuelos appeals, contending the trial court prejudicially erred when it instructed the jury with the “Corona instruction” contained within CALJIC No. 17.20 which permitted the jury to find personal infliction of great bodily injury even where the evidence was insufficient to determine which person actually inflicted such injury. He also asserts that even if a Corona instruction is a correct statement of the law, the prosecution failed to prove the impossibility of determining who inflicted the injury and the…