People v. Vargas

McCLOSKY, J.,

Concurring and Dissenting.—I concur with all of the majority opinion except that part of part I which holds that the evidence established only one continuing course of criminal conduct and therefore no *1470 sua sponte duty of the trial court to instruct the jurors that they had to unanimously agree that defendant was guilty as the result of willful conduct or criminal negligence or both in order to convict her. From that portion of the decision I dissent.

Necessarily my partial concurrence means that I agree with the majority that in the case of a violation of Penal Code section 273a the jury need not be instructed that it had to unanimously agree that defendant committed the same act or acts or made the same criminal omission or omissions in order to convict, nor need it be instructed that it must unanimously agree on the same theory of liability in order to convict. (People v. Madden (1981) 116 Cal.App.3d 212, 218 [ 171 Cal.Rptr. 897 ]; People v. Failla (1966) 64 Cal.2d 560, 567 [ 51 Cal.Rptr. 103 , 414 P.2d 39 ].)

I believe that the majority’s analogy to aiding and abetting is inapposite since defendant was neither tried on an aiding and abetting theory nor does either party argue that proposition.

Under the continuing-course-of-conduct exception to the general rule requiring jury unanimity when the evidence shows more than one criminal act, the trial court did not have to instruct the jurors that they had to unanimously agree on a specific act of willful abuse or endangerment to convict defendant of a continuing course of willful criminal conduct. Nor was the trial court required to instruct the jurors that they had to unanimously agree on a specific instance of criminal negligence in order to convict defendant of a continuing course of criminal neglect.

I believe, however, that in a case such as the case at bench when the evidence establishes more than one continuing course of criminal conduct, the jurors must be instructed that in order to convict they must unanimously agree that defendant committed the same course or courses of conduct.

As the majority concedes, it is the general and fundamental rule that the jury must unanimously “agree upon the commission of the same act in order to convict a defendant of a charged offense. [Citations.] If the defendant is prosecuted for violation of a statute under which any one of several different acts could constitute the offense, the jury must be told that a verdict of guilty must be supported by a unanimous finding that one of the acts was committed. [Citation.]” (People v. Masten (1982) 137 Cal.App.3d 579, 588 [ 187 Cal.Rptr. 515 ].)

“The law recognizes an exception to this rule where a series of acts forms part of one and the same transaction, and as a whole, constitutes but one and the same offense. [Citations.] This exception applies to those types of *1471 offenses which are continuous in nature, and can be comprised of multiple acts or a course of conduct over a period of time.” (Ibid.)

With regard to the continuing-course-of-conduct exception, the court in People v. Madden, supra, 116 Cal.App.3d 212 , 218 noted: “Conceptually, the exception of continuous conduct resulting in but one offense is quite limited. There is a fundamental difference between a continuous crime spree and continuous conduct resulting in one specific offense. The continuous conduct exception only really applies, if at all, to those types of offenses where the statute defining the crime may be interpreted as applying, on occasion, to an offense which may be continuous in nature such as failure to provide, child abuse, contributing to the delinquency of a minor, driving under the influence and the like . . . .” (Italics added.) Thus, Penal Code section 273a, a statute that could be violated by either one act or by a continuing course of conduct, comes within the continuing-course-of-conduct exception to the rule that a jury must be instructed to, and must unanimously agree on, the act or omission conjoined with the requisite intent that constitutes the violation of the statute.

That “quite limited” continuing-course-of-conduct exception is illustrated by the case of People v. Ewing (1977) 72 Cal.App.3d 714 [ 140 Cal.Rptr. 299 ], in which defendant Ewing had been convicted of abusing a 13-month-old baby under circumstances likely to produce great bodily harm or death. In Ewing “defendant lived with the child’s mother and was frequently left alone with the child; on various occasions in September, October and November 1975, the child suffered scratches, scalds, burns and bruises which defendant attributed to accident or carelessness. On November 10, 1975, the child was brought to a hospital exhibiting head bruises and suffering from three separate subdural hematomas, one of which proved fatal. . . . [Two] doctors testified to ‘a reasonable medical certainty’ that the child was a victim of the battered child syndrome.” ( 72 Cal.App.3d at p. 716 .) In Ewing , no evidence of an alternative continuing course of conduct such as child endangering in the face of abuse by another was presented to the jury.

On appeal defendant Ewing contended that the trial court should have instructed the jurors sua sponte that they all had to agree that defendant committed the same act or acts in order to return a verdict of guilty. The Ewing court rejected that contention, holding that because Penal Code section 273a was a statute that could be violated by a continuing course of conduct and because the information alleged a course of conduct, the trial court did not err in failing to instruct the jury that unanimity as to a particular act or acts was required. ( 72 Cal.App.3d at p. 717 .) Ewing is perfectly good law on that subject. It is for that same reason that I agree *1472 that no instruction was required in this case as to jury unanimity as to the same act or acts.

While illustrative of the continuing-course-of-conduct exception, it is clear that Ewing is distinguishable from the case at bench since Ewing did not involve claimed different courses of conduct, but only one single continuing course of conduct.

In the case before us, defendant was charged in the information with a violation of Penal Code section 273a, subdivision (1) by continuing courses of conduct occurring “[o]n and between September 8, 1986 and September 17, 1986.”

Unlike the situation in Ewing , there was substantial evidence in this case, not only of a continuing course of willful child abuse and endangerment by defendant, but also of a continuing course of criminal negligence by her. It is thus possible under the instructions given, and in light of the argument made by the prosecutor, that several, but less than all, jurors voted to find defendant guilty because she engaged in a course of conduct consisting of willful child abuse, and that several, but less than all, jurors voted to find her guilty because she engaged in a course of conduct consisting of criminal negligence. This results in the possibility that the jury verdict reached did not reflect the jury’s unanimous verdict as to which course or courses of conduct it found defendant guilty. In People v. Madden, supra, 116 Cal.App.3d 212, 219 , the court stated: “‘It is fundamental that a criminal conviction requires a unanimous jury verdict (Cal. Const., art. I, §§ 16, 7, subd. (a); People v. Wheeler (1978) 22 Cal.3d 258, 265 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ]).’”

In a case such as this where defendant is charged in a single count with several alternative criminal courses of conduct and the evidence tends to show that he or she may have engaged in more than one such course of conduct, no California case until this one has ever excused the requirement that the jury must unanimously agree on the particular continuing course or courses of conduct of which defendant is guilty in order to convict.

The majority argues that no California case goes the other way. I believe the majority is incorrect. As People v. Masten teaches, the general rule is that “the entire jury must agree upon the commission of the same act in order to convict a defendant of a charged offense . . . [and that] [i]f the defendant is prosecuted for violation of a statute under which any one of several different acts could constitute the offense, the jury must be told that a verdict of guilty must be supported by a unanimous finding that one of the acts was committed. [Citation.]” ( 137 Cal.App.3d 579, 588 .)

*1473 The continuing course of conduct is a limited exception to this general rule which occurs in the case of certain statutes, among which is Penal Code section 273a, the statute here involved.

The vice of the majority opinion is that in order to convict, it takes the limited continuing-course-of-conduct exception to the general rule and, unsupported by California precedent, attempts to transform that limited exception into a new general rule requiring no unanimous finding by the jury that the defendant committed the same course or courses of conduct. I cannot find legal support for that position and cannot join in it.

I also conclude that the constitutional requirement of jury unanimity required the trial court to instruct the jurors sua sponte that before they could find defendant guilty they had to unanimously agree that she engaged in a continuing course of willful child abuse or a continuing course of criminal negligence or willful neglect or of more than one of those courses of conduct. 1

The suifering which the child victim in this case endured is both deplorable and heartbreaking. As the court noted in Madden , however, the “determination of guilt is for a jury, not [the] court. . . . [W]e have no assurance that a miscarriage of justice did not occur. Therefore, the judgment of conviction . . . must be reversed. [Citation.]” ( 116 Cal.App.3d at p. 219 .)

Here, neither we nor the trial court may properly speculate or assume as to which course or courses of conduct the jury found defendant guilty or that they all agreed that she was guilty of the same course or courses of conduct.

This is particularly true in light of the fact that the prosecutor in her argument to the jury stated that they could find defendant guilty if they found that she personally inflicted the injuries on the child, if she failed to protect the child from an abusive husband, or if she failed to provide medical care for the child when a reasonable person in a similar situation would have done so. Thus, the prosecutor recognized that there were three “alternative” continuing courses of conduct and stated that any one of these *1474 three “alternative bases” of liability would justify a conviction but that the jurors did not have to agree on the same “theory.” 2

She argued: “. . . I referred to a theory of liability for abuse and I referred to a theory of liability for neglect. Every experienced prosecutor is well aware that some jurors will look at the evidence one way and some jurors will look at the evidence another way. The point that I’m trying to make here is whether or not you believe this lady actually inflicted the abuse under the theory of child abuse, there may be jurors who say, ‘I’m not persuaded to that.’

“But there’s no question in my mind that this little guy needed help and he didn’t get it. And he was exposed to very serious potential harm, really exposed to serious risk of great bodily harm or death. That also is the basis of liability.

“So I do not wish to mislead you. The People’s position in this case is that the evidence is clear that this lady inflicted abuse on this child, . . .

“But I would like you to be aware of the fact that there are alternative bases for you to consider. And whether or not you are persuaded by one or the other, if you find either one or the other, if any of the 12 of you find any of these bases together, that is sufficient.

“Now that doesn’t mean you have to agree all on the same one. If you find that the statute has been violated as this lays out, then in fact you have been persuaded that this child was exposed to the risk of great bodily harm or death under one of these three possibilities.”

Although the jury was instructed that any statement made by the attorneys during trial was not evidence, I cannot conclude, in the absence of a unanimity instruction as to course or courses of conduct, that the jurors were not influenced by the prosecutor’s argument.

How does the majority meet this problem? It merely sweeps the problem under the rug by concluding that there was only one course of conduct and that “course of conduct” consists of both willful child abuse and criminal neglect. The prosecutor in her argument was more candid with the jury.

*1475 The majority does not give any explanation as to how it reaches its conclusion that there was but one continuing course of conduct. The case was not tried, argued or instructed on that basis. Not only did the prosecutor argue that there were three alternative bases but she also argued that the jury could find defendant guilty of a continuing course of willful conduct or a continuing course of criminal neglect. At the request of the People, the trial court instructed the jury that: “In order to prove the commission of the crime of Felony Child Endangering, each of the following elements must be proved: []J] 1. A. That a person willfully caused or permitted a child to suffer, or inflicted thereon unjustifiable physical pain or mental suffering; or [j|] B. That a person having the care or custody of a child willfully caused or permitted the person or health of a child to be injured; or [j|] C. That a person willfully caused or permitted a child to be placed in such a situation that its person or health was endangered; and [if] 2. The circumstances or conditions to which the child was exposed were likely to produce great bodily harm or death.” (Italics added.)

The trial court at the request of the People further instructed the jury that “criminal negligence” is defined as “conduct which amounts to a reckless, gross or culpable departure from the ordinary standard of due care. It must be such a departure from what would be the conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life.” (CALJIC No. 16.173.1 (1985 new); see also, People v. Peabody (1975) 46 Cal.App.3d 43 [ 119 Cal.Rptr. 780 ].)

A comparison of the definitions of “willfully” and “criminal negligence” readily discloses that each form of conduct is separate and distinct from the other and, accordingly, each is proven by different facts.

I would reverse and remand for a new trial under proper instructions.

Appellant’s petition for review by the Supreme Court was denied January 19, 1989.

Based on the evidence adduced at trial, an instruction substantively as follows should have been given sua sponte: In this case, the prosecution is based upon a continuing course of willful conduct or a continuing course of criminally negligent conduct. Before the jury can find the defendant guilty, the jury must unanimously agree that the defendant engaged in a continuing course of willful conduct, or unanimously agree that defendant engaged in a continuing course of criminal negligence, or unanimously agree that the defendant engaged in both courses of conduct.

Although the prosecutor on more than one occasion referred to a continuing course of conduct as a “theory” it is obvious that in each instance she was referring to a particular continuous course of conduct. Jurors, of course, need not be instructed that they have to unanimously agree that defendant is guilty under the same theory of liability in order to convict. (See People v. Failla, supra, 64 Cal.2d 560, 567 .)