Lueth

A 911 caller reported seeing defendant Eric Preston Lueth using a tire iron to hit a woman and to damage a vehicle. When the police arrived, defendant’s girlfriend had a rapidly swelling bump on her forehead, and her Jeep was damaged. Defendant was bleeding from a cut on his head. The girlfriend refused to tell the police what had happened. At trial, however, she testified that defendant did hit her, but indoors, with his fist; she did not remember being hit outdoors, with a tire iron.

A jury found defendant guilty of aggravated assault (Pen. Code, § 245, subd. (a)(1)), inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), and vandalism (Pen. Code, § 594, subd. (b)(2)(A)). He admitted *192 one “strike” prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and two 1-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). He was sentenced to a total of 10 years in prison, plus the usual fines and fees.

Defendant’s sole appellate contention is that the trial court erred by refusing to give a unanimity instruction on the charge of inflicting corporal injury on a cohabitant. Our analysis is complicated by the fact that the case law does not…