What is the test for reversing convictions for assault with a firearm committed during a residential burglary?

The defendant next objects that his convictions for the offenses committed during the residential burglary must be reversed because the trial court did not instruct sua sponte on the defense of intoxication. One of the victims of that episode, a teenager, testified that she smelled alcohol on the defendant's breath and that his eyes were glassy. The police officer who later interviewed the defendant stated that he appeared normal and was not under the influence of anything. Aside from this, there is no other evidence on the issue of intoxication nor was this defense argued by counsel. The defendant himself did not testify, nor did any witness observe that the defendant's speech or coordination were impaired. While it is the duty of the trial court to give instructions sua sponte if there is substantial evidence to support a defense (People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913 [overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1] ), no such evidence is presented here. At best, the victim's testimony raises the possibility that the defendant may have been drinking. It is not sufficiently substantial however, to require a sua sponte instruction that the defendant may have been too intoxicated to form an intent.

The information charged the defendant in the residential burglary with seven counts of assault with a firearm (Pen.Code, 245(a)(2)). Six of these counts were alleged against individual members of the family. For reasons unknown, however, one count of assault with a firearm (count II) alleged two victims. Assaults upon separate victims, even though committed in a single act, are separately punishable offenses and should be charged separately. (People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552.) More importantly, however, the defendant objects that the jurors were not instructed on count 11 that their verdict must be unanimous on which individual was the victim of the assaults. Similarly, count 13 alleges that the defendant falsely imprisoned two victims (Pen.Code, 236). In this case, no instruction was given that the jury must agree unanimously on the victim or specific acts that constituted the offense.

We have little choice but to reverse these convictions. Article I, section 16 of the California Constitution requires that criminal jury verdicts be unanimous. Reversal is required where the information erroneously alleges two victims in an assault count and where no instruction on the need to agree unanimously on the victim has been given. (People v. McNeill (1980) 112 Cal.App.3d 330, 334-336, 169 Cal.Rptr. 313.) Accordingly, counts 11 and 13 are reversed and remanded to the trial court where the People may seek retrial at its discretion.