P. v. Schyniader

Filed 9/29/06 P. v. Schyniader CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Mark Ashton Cope, Judge. Affirmed.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, A. Natasha Cortina, Kyle Niki Shaffer, and Raymond M. Diguiseppe, Deputy Attorneys General, for Plaintiff and Respondent.

1. Introduction^[1]

Defendant’s stepdaughter, V., suffered a kidney injury and defendant and V.’s mother, Q., failed to seek prompt medical attention for her. A jury convicted defendant of violating section 273a, subdivision (a), and found true the allegation that “[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.” (§1170, subd. (b); Cal. Rules of Court, rule 4.421(a)(1).) The trial judge declared a mistrial on one count of violating section 273d, subdivision (a), and the enhancement alleged under 12022.7, subdivision (d) and dismissed those charges.

Defendant admitted having suffered a prior prison term, a prior conviction for a violent and serious felony, and a prior strike. The court sentenced defendant to a total middle term of eight years in prison.

On appeal, defendant challenges the trial court’s failure to give a unanimity instruction and instructions concerning an accomplice’s testimony. Defendant also argues there was insufficient evidence to support a child abuse conviction and the trial court abused its discretion by denying defendant’s motion to dismiss the prior strike allegation. After due consideration, we reject defendant’s contentions of error and affirm the judgment.

2. Facts

In December 2003, defendant began dating Q., who had three children., including V. who was 20 months old in February 2004. On Wednesday, February 11, 2004, V. stayed home with defendant because Q. was late for work and could not take her to daycare. On Thursday, February 12, 2004, V. became ill and stopped eating. On Friday, she was kept home from daycare.

Defendant and Q. were married on Saturday, February 14. V. acted whiny and irritable and slept through most of the wedding ceremony. At the party afterwards, V. refused to eat, became ill, and vomited. Defendant and Q. took V. to the emergency room where they waited for several hours and finally left without seeing a doctor because the wait was too long. On Sunday, V. first seemed to improve but her stomach began hurting and she was sleepy and unable to walk. Defendant and Q. took V. back to the hospital. Q. reported that, for three days, V. had not been walking, had loose bowel movements and decreased urine output, and had not been eating. The examining physician observed indications of abdominal pain. V.’s abdomen was protuberant and she exhibited pain when the doctor touched her stomach. Both defendant and Q. reported they did not know of any trauma suffered by V. An ambulance transported V. to Children’s Hospital in San Diego.

An examination by Dr. Marilyn Kaufield disclosed V. had suffered a fractured left kidney, which was leaking urine. The diagnosis was a Grade 4 renal injury to the kidney, commonly caused by major external trauma like an automobile accident, a physical assault, or being thrown on a surface causing an impact to the abdomen. After surgery was performed to drain the urine, V. was released from the hospital.

In interviews with the police, defendant first denied that V. had fallen or been in an accident. Then he described jumping and landing accidentally on V. Subsequently, he alternated between saying the jumping incident did and did not happen. Finally, he agreed to videotape the incident using a CPR mannequin to represent V.

Dr. Kaufield reviewed the tape and concluded the actions in the video could not have caused V.s’ injuries. In Dr. Kaufield’s opinion, V.’s injuries -- kidney laceration and the consequent physical symptoms -- resulted from nonaccidental trauma.

Defendant testified that when he supervised the children he disciplined them using timeouts, withholding toys and television privileges.

Defendant stayed home from work with V. on Wednesday. According to defendant, V. went to daycare on Thursday but ate very little on Thursday and Friday. When defendant and Q. took V. to the hospital, they could not explain her injury.

Defendant and Q. made up a story about defendant jumping on V. so the children would not be removed. Defendant denied ever hurting V.

A pediatric surgeon testified that V.’s injury had been caused by blunt trauma--an automobile or bicycle accident, a fall, or abuse.

3. Unanimity Instruction

Defendant argues the trial court should have given a unanimity instruction on count 2 for child abuse or endangerment under section 273a, subdivision (a). When a defendant is charged with a single criminal offense, but the evidence shows more than one act which could constitute that offense, the prosecutor must either make an election of the specific act relied upon or the trial court must instruct the jury to agree unanimously that the defendant committed the same specific act. (People v. Brown (1996) 42 Cal.App.4th 1493, 1499.) Furthermore, “a trial court should give the instruction sua sponte where the circumstances of the case so dictate.” (People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8.)

Defendant asserts that, as to count 2, “there was arguably evidence of several potential acts and omissions which would have qualified as child abuse or endangerment under section 273a, subdivision (a).” Specifically, the jury, as urged in the prosecutor’s closing argument, could have found defendant guilty of physically abusing V. The evidence could also have supported a jury finding defendant delayed seeking medical care for V. or that defendant left the hospital prematurely without obtaining treatment.

In response, the People argue a unanimity instruction was not required because defendant was alleged to have committed a single crime and because the crime of felony child endangerment constitutes a continuous course of conduct. (People v. Felton (2004) 122 Cal.App.4th 260, 270; People v. Napoles (2002) 104 Cal.App.4th 108, 115-116; People v. Diedrich (1982) 31 Cal.3d 263, 282.) In the alternative, the People maintain any error was harmless under either Chapman v. California (1967) 386 U.S. 18, 24 or People v. Watson (1956) 46 Cal.2d 818, 836.

Before we address the parties’ respective arguments, we observe that, even if liability could be imposed on defendant for a delay in obtaining hospital treatment for V., the record supports the prosecution elected to rely upon the infliction of the kidney injury as the specific act supporting defendant’s guilt. In closing argument, the prosecutor focused his argument entirely upon the direct and circumstantial evidence implicating defendant. In one short paragraph, the prosecutor made a passing comment that was critical of defendant and Q. for leaving the hospital after waiting for several hours. But there was no effort to argue that the early departure from the hospital and the subsequent delay in returning was the basis for the charged offense.

In our further analysis of this issue, we disregard defendant’s improper references to the purported reasons for the jury’s verdict. Evidence about the jury’s mental processes is not admissible or relevant. (Evid. Code, § 1150, subd. (a).) For that reason, defendant’s premise fails that the jury’s verdict could have been based exclusively on the failure of defendant, or defendant and Q., to seek prompt medical treatment.

In the present case, the abuse and delayed treatment comprise a single course of conduct, as explained in People v. Napoles, supra, 104 Cal.App.4th at p. 116: “’[w]here . . . the evidence establishes a pattern of physical trauma inflicted upon a child within a relatively short period of time, a single course of conduct is involved and no justification exists for departing from the well-established rule . . . that jury unanimity is not required as to the underlying conduct constituting the violation of section 273a.’ [Citation.] In [People v. Vargas (1988) 204 Cal.App.3d 1455, 1462], ‘burns, bruises, contusions, whipping injuries, and bites [were] inflicted within a . . . 10-day period.’ [Citation.] In [People v. Ewing (1977) 72 Cal.App.3d 714, 716], the conviction rested on evidence of ‘scratches, scalds, burns and bruises . . . and three separate subdural hematomas, one of which proved fatal,’ that occurred over a three-month period.”

Application of these principles to the facts here demonstrates that no unanimity instruction was required. The information accused defendant of violating section 273a, subdivision (a), in February 2004. This broad language alerted the jury that the charge consisted of a continuous-course-of-conduct crime. In addition, the evidence presented was that, after V. was injured, delayed treatment aggravated her injuries over the course of the next few days.

Defendant concedes that, if V. had been beaten repeatedly, it would have constituted a continuous course of conduct and a unanimity instruction would not be required. The difference between two beatings and a beating followed by delayed treatment is a distinction without significance. Based on the language of the charging document and the evidence presented, any jury disagreement would have been focused on the exact way the charged offense was committed and not on whether one of several discrete crimes had occurred. Thus we find no error in the trial court’s refusal to give a unanimity instruction.

4. Accomplice Testimony

Defendant asserts that Q. altered the daycare sign-in sheets to make it appear V. was in daycare on Thursday and Friday and Q. was complicit in delaying medical treatment, making Q. an accomplice to defendant’s crime of child abuse. Therefore, defendant argues the trial court erred by not giving instructions about corroboration of an accomplice’s testimony based on CALJIC Nos. 3.10, 3.11, 3.12, and 3.13. (§ 1111; People v. Martinez (1982) 132 Cal.App.3d 119, 132; People v. Belton (1979) 23 Cal.3d 516, 526.) Defendant additionally argues it was prejudicial error to give CALJIC No. 2.27, about the sufficiency of testimony of one witness, because Q. was an accomplice.

The People contend Q. was not an accomplice but any error was harmless because of corroborating evidence.

As noted above, we reject defendant’s essential premise that defendant’s conviction was based only on the failure to seek prompt medical treatment. Therefore, Q. was not an accomplice because there was no evidence whatsoever to implicate Q. in the identical offense with which defendant was charged. As explained in People v. Fauber (1992) 2 Cal.4th 792, 833-834: “Section 1111 defines an accomplice as ‘one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’ (§ 1111.) In order to be chargeable with the identical offense, the witness must be considered a principal under section 31. [Citation.] That section defines principals to include ‘[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . .’ (§ 31.) An accessory, however, is not liable to prosecution for the identical offense, and so is not an accomplice. [Citation; fn. omitted.]

“Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom. [Citation.] The burden is on the defendant to prove by a preponderance of the evidence that a witness is an accomplice. [Citation.]”

In the present case, the expert evidence blamed V.’s injuries on the application of blunt force trauma. The record did not show Q. ever encouraged, facilitated, or assisted in physical abuse inflicted on V. Q. did not participate in the crime in any way so as to qualify her as an accomplice under sections 31 and 1111.

Furthermore, any error in not giving accomplice instructions was harmless because other evidence sufficiently corroborated Q.’s testimony. (People v. Arias (1996) 13 Cal.4th 92, 143.) The primary inculpatory evidence in this case was essentially undisputed. Whether or not V. was in daycare on Thursday and Friday, it was unchallenged that defendant spent Wednesday caring for V. and V. began to display symptoms of illness by Thursday. No prejudicial error occurred under any standard of review. (Id.)

On a related note, we similarly reject the argument about CALJIC No. 2.27 because Q. was not an accomplice and her testimony was corroborated by other evidence. For that reason, People v. Noguera (1992) 4 Cal.4th 599 does not apply.

5. Sufficiency of Evidence

Relying again upon the discredited argument that Q. was an accomplice in delaying medical treatment, defendant contends there is not substantial evidence to support the conviction under section 273a, subdivision (a), for child abuse. We disagree.

As has often been variously stated: “When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the verdict, drawing all inferences that reasonably support it, and determine whether it contains substantial evidence--that is, evidence which is reasonable, credible, and of solid value--from which a trier of fact could rationally find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319-320.) In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. (See People v. Jones (1990) 51 Cal.3d 294, 314.) Moreover, because it is the jury, not the reviewing court, that must be convinced of the defendant’s guilt beyond a reasonable doubt, we are bound to sustain a conviction that is supported by only circumstantial evidence, even if that evidence is also reasonably susceptible of an interpretation that suggests innocence. (People v. Bean (1988) 46 Cal.3d 919, 932-933.)” (People v. Little (2004) 115 Cal.App.4th 766, 771.)

The evidence, as discussed previously, does not support Q. was an accomplice. In other evidence, defendant first told the police V. stayed home with him on Wednesday and showed symptoms of being ill on Thursday and Friday. He also admitted (although he later recanted) causing accidental injury to V. by jumping on her. Additional evidence supported a finding that V.’s physical injuries had to have been caused by traumatic abuse before Thursday, February 12.

When viewed most favorably to the judgment, substantial evidence supports the conviction and the jury’s verdict. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)

6. Motion to Dismiss

Defendant contends the trial court abused its discretion by denying his motion to dismiss his prior conviction for robbery (§ 211) in September 1993, when he snatched a necklace from a woman pedestrian’s neck, after which he repeatedly violated probation and parole. Defendant was paroled the final time in May 2003 and discharged from parole in July 2003, a few months before the present crime was committed. The court based its decision on its determination that defendant did not fall outside the spirit of the Three Strikes scheme, enacted to punish repeat offenders. (People v. Williams (1998) 17 Cal.4th 148, 162-163.) Defendant argues the previous robbery is remote in time and unrelated to the present crime.

The appellate standard of review is deferential abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373-375.) The trial court understood the scope of its discretion and considered the nature and circumstances of defendant’s past and present crimes and the particulars of his background, character, and prospects. (People v. Williams, supra, 17 Cal.4th at p. 161.) It deemed the previous robbery not “minor” and noted that defendant was finally discharged from parole in July 2003 and the present crime occurred less than a year later in February 2004. The trial court did not abuse its discretion by refusing to grant defendant’s motion to dismiss his prior strike.

7. Disposition

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

I concur:

s/Ramirez

P. J.

KING, J., Dissenting.

I disagree with the majority and would reverse defendant’s conviction. The trial court’s failure to give a unanimity instruction, under these facts, is inappropriate and rises to the level of reversible error.

“In a criminal case, a jury verdict must be unanimous . . . . Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]

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.’ . . . ‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “The unanimity requirement is constitutionally rooted in the principle that a criminal defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. [Citations.]” (People v. Brown (1996) 42 Cal.App.4th 1493, 1499-1500) “When the trial court erroneously fails to give a unanimity instruction, it allows a conviction even if all 12 jurors . . . are not convinced that the defendant is guilty of any one criminal event . . . . This lowers the prosecution’s burden of proof and therefore violates federal constitutional law. [Citations.]” (People v. Wolfe (2003) 114 Cal.App.4th 177, 187-188.) Where the underlying facts call for it, the trial court should sua sponte give the unanimity instruction. (People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8.)

As I explain, I believe that these principles compel reversal in this case. First, it is apparent from the jury’s verdicts that the jurors did not agree that defendant affirmatively inflicted injury upon V.; rather, the verdicts disclose that while the jurors who would have convicted defendant on count 1 believed that defendant inflicted injury upon V., those who would have acquitted defendant on count 1 apparently concluded that he was guilty only of passive conduct that allowed the child to suffer. Second, contrary to the majority, I do not believe that the prosecutor ever selected the specific acts the People relied upon for count 2. And third, the alleged act of inflicting injury and the subsequent delay in treatment do not constitute a single course of conduct for purposes of the unanimity rule.

A. The Jury Verdicts Indicate That Jurors Did Not Agree That Defendant Inflicted Injury

The majority rests its conclusion regarding unanimity, I believe, upon a false distinction between “two beatings and a beating followed by delayed treatment.” (Maj. opn., ante, at p. 7.) The majority then rejects this as a “distinction without significance.” On both sides of this distinction, the majority assumes that the jury found defendant “beat” V. The relevant distinction, however, is between (1) a beating by defendant (followed either by defendant delaying treatment or not), and (2) no beating by defendant followed by defendant delaying treatment. As I will explain, the jury’s verdicts indicate that while some jurors believed that defendant was guilty of beating V., others concluded that defendant did not inflict the injury and that guilt depended upon the delay of treatment.

Defendant was charged in count 1 with a violation of Penal Code section 273d, subdivision (a).^[2] As enumerated, “[a]ny person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a felony . . . .” (§ 273d, subd. (a), italics added.) For criminal liability to attach, “[s]ection 273d . . . requires the defendant to inflict a cruel or inhuman corporal punishment or injury upon a child . . . .” (People v. Cockburn (2003) 109 Cal.App.4th 1151, 1160.)

In count 2, defendant was charged with a violation of section 273a, subdivision (a), which provides: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain . . . , or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment. . . .” (Italics added.) A “[v]iolation of section 273a, subdivision (a) ‘“can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect.”’” (People v. Valdez (2002) 27 Cal.4th 778, 784.)

The record discloses at least two discrete acts or courses of conduct upon which a jury could rest a verdict of guilt relative to count 2: (1) defendant inflicted the injury upon the victim, or (2) defendant permitted the victim to suffer by leaving the emergency room early and/or not being forthright with treating doctors, thereby delaying diagnosis and treatment. Here, the bulk of the evidence, as well as the prosecutor’s closing argument, focused on the infliction of the injury upon V. Substantial evidence was also submitted however, on the alternative factual basis -- that defendant allowed the child to suffer by leaving the emergency room and failing to be forthright about the jumping incident. Dr. Carl Murillo, for example, an emergency room physician who attended to the minor victim gave the following testimony:

“Q. In determining what type of care to give a patient and what type of procedures to request, is it important for you to know how an illness or an injury occurred?

“A. Yes.

“Q. Is it a fair statement, Doctor, that an incomplete history or a false history may delay a proper or correct diagnosis of a patient?

“A. Yes.

“Q. And what are the repercussions of a delayed or even a false diagnosis?

“A. A term which we call ‘morbidity,’ meaning consequences that could be harmful to the patient.”

Dr. Marylyn Kaufhold, the victim’s treating physician upon her transfer to Children’s Hospital of San Diego, testified:

“Q. Over time, over passage of hours or days, would you expect to see those symptoms [urine output] increase or decrease?

“A. Well, it depends on how serious the injury is. Some of these actually go on to heal on their own, and probably we never know about them. This was a very serious injury, though, and this child had become dehydrated. She was very lethargic. She didn’t want to walk, and she was that way for several days. So that really begins a spiral downward and could have led to her death.

. . .

“Q. Based upon your review of that interview [of defendant], did you believe that the actions depicted in that -- in that videotape caused the injuries, the grade four laceration to [victim]?

“A. I think it is unlikely for several reasons.

“Q. And why is that?

“A. What is depicted is [the victim] kind of jumping to the bed and her father landing on top of her, and there would be some pressure exerted on the area of the abdomen. However, in all the time that [victim] was in the hospital and people needed to know what was wrong with her, this history was never, ever forthcoming. It would have saved the doctors days. It would have saved [victim] days of uncertain diagnostic procedures which needed to be done to try to figure it out. Had it been known that it was trauma, it would have shortcut the process to her operation and recovery.”

Although the prosecutor emphasized in his closing argument that defendant inflicted the injury, he also referred to the failure to seek treatment. “Some of us have waited or been inside a movie theatre longer than the defendant and his wife waited in the E.R. room to see their infant daughter treated, and they didn’t do it. They didn’t wait however long to see their daughter treated because they just didn’t want to wait any longer.”

As set forth above, to be found guilty under count 1 of a violation of section 273d, subdivision (a), defendant must affirmatively inflict injury. To be found culpable under count 2 of violating section 273a, subdivision (a), defendant can either affirmatively cause the injury or, in a criminally negligent manner, fail to act. Here, the jury hung on count 1, which required proof that defendant willfully inflicted punishment or injury, but found him guilty on count 2, which required only that defendant cause or permit a child to suffer.

Relative to both counts 1 and 2, the People further alleged that defendant “personally inflicted great bodily injury on a child under 5 years old in the commission of count[s] [1 & 2] within the meaning of Penal Code section 12022.7, subdivision (d).” Of note is that on count 2, wherein the jury returned a guilty verdict to a violation of section 273a, subdivision (a), the jury was hung relative to the allegation that defendant “personally inflicted great bodily injury.” Likewise on count 1 (defendant willfully inflicting injury), where the jury did not return a verdict, they nonetheless answered a number of allegations attached to the underlying charge. They again did not agree on the allegation that defendant “personally inflicted great bodily injury.”

Based on the verdicts, it appears that at least some of the jurors rejected the charge and allegations that defendant inflicted injury upon the child. The jurors could agree only on the charge by which defendant could be found guilty of either causing the injury or permitting the child to suffer by delaying treatment. Indeed, the trial court appears to have recognized this too late. Following the discharge of the jury, this colloquy occurred between the prosecutor, the court, and defense counsel:

“PROSECUTOR: I mean, the finding on Count -- on allegation No. 4, the defendant engaged in violent conduct, I -- I’m assuming they [the jury] were unable to reach a decision unanimously whether or not he personally inflicted the [great bodily injury].

“THE COURT: Well, they also could have -- you know, we are guessing on this, but they also could have found that that was a once-in-a-lifetime thing, and he’s not a dangerous man, which is what that finding is about. We’re talking about you while you’re sitting here. I apologize for that, but I’m just trying to figure out the verdicts and how they make sense.

“DEFENSE COUNSEL: Also, with Count [2], there’s a lot of different theories that we gave them. We’re not sure which one they proceeded on.

“THE COURT: They could have found him guilty on the theory that his delaying in the treatment was what was the danger, in which case he is not the one who personally inflicted the [great bodily injury]. Could have well been.

I’m sorry I can’t give you better than that.”

Thus, I cannot conclude, as the majority does, that the jury rested its guilty verdict on count 2 on defendant’s infliction of the kidney injury. Indeed, it appears from the verdicts that the jury could not agree that defendant inflicted the injury and that defendant’s failure to obtain medical care for the victim or his failure to be forthright with treating physicians served as the basis for at least some of the jurors’ determination of guilt. Because the verdicts reveal that some jurors believed that defendant had personally inflicted the injury and other jurors believed that he is culpable for his passive conduct, a unanimity instruction should have been given.

B. The Prosecution Did Not Specify the Criminal Conduct It Was Relying Upon for Count 2

When the evidence suggests more than one discrete crime, “either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The majority indicates that “even if liability could be imposed on defendant for a delay in obtaining hospital treatment for V., the record supports the prosecution elected to rely upon the infliction of the kidney injury as the specific act supporting defendant’s guilt.” I disagree.

In People v. Melhado, supra, 60 Cal.App.4th 1529, the defendant was charged with one count of a terrorist threat. There were at least two instances upon which a jury could conclude that the defendant made a terrorist threat to the victim; one occurring at 9:00 or 9:30 a.m., the other at 11:00 a.m. At the conclusion of the evidence, the defendant made a motion for the prosecutor to elect which act served as the basis for the charged count. The prosecutor informed both the court and defense counsel, outside the presence of the jury, that he was basing the charge on the 11:00 a.m. incident. The prosecutor thereafter focused his argument to the jury that the 11:00 a.m. incident was the terrorist threat. The court did not instruct the jury on unanimity, nor did it instruct the jury pursuant to CALJIC No. 4.72, which informs the jury specifically as to which incident the People are alleging as the basis of the charge. On appeal, the People argued that a unanimity instruction was not necessary because the prosecutor emphasized in his closing argument that the 11:00 a.m. incident was the basis for the charge. The appellate court disagreed. It reversed the defendant’s conviction based on the trial court’s failure to give the unanimity instruction. “It is possible to parse the prosecution’s closing argument in a manner which suggests that more emphasis was placed on the 11 a.m. event than on the others. However, even assuming that this was so, we find that the argument did not satisfy the requirement that the jury either be instructed on unanimity or informed that the prosecution had elected to seek conviction only for the 11 a.m. event, so that a finding of guilt could only be returned if each juror agreed that the crime was committed at that time. Because the prosecutor did not directly inform the jurors of his election and of their concomitant duties, it was error for the judge to refuse a unanimity instruction in the first instance and to disregard his sua sponte duty thereafter.” (Id. at p. 1536.) Here, neither the court (pursuant to CALJIC No. 4.72) nor the prosecutor informed the jury that the sole basis for the charge was defendant’s infliction of injury on the victim and that the jury needed to unanimously agree thereon.

This case clearly demonstrates the problem in allowing a prosecutor’s closing argument to alleviate the necessity for a unanimity instruction or a formal election by the prosecutor. Here the prosecutor emphasized in closing argument that defendant inflicted the injury on the victim. He argued that defendant’s infliction of injury was the basis for both counts 1 and 2. It is apparent from the hung jury on count 1 that fewer than all 12 jurors agreed that defendant inflicted the injury. It therefore logically follows that if this court allows the prosecutor’s argument to be a binding election as to the act that forms the basis for the two counts, thereby alleviating the need for a unanimity instruction, a mistrial should have been declared on both counts in that not all jurors agreed on guilt based upon the act “elected” by the prosecutor.

C. The Infliction of the Injury and the Subsequent Delay in Treatment Are Not a Single Course of Conduct

I disagree with the majority’s conclusion that no unanimity instruction was required because “the abuse and the delayed treatment comprise a single course of conduct.” In People v. Russo, supra, 25 Cal.4th 1124, the court stated that “the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (Id. at pp. 1134-1135.)

Here, there were two discrete events that arguably constituted the crime alleged in count 2: the infliction of a physical injury upon V., and the subsequent delaying of treatment of the injury. Because of the different nature of such conduct and the manner in which the different acts or omissions occur -- the former involving affirmative physical conduct by defendant, while the second involved passively delaying treatment of the injury -- there was a clear risk that jurors would disagree on any particular event. As explained above, this risk is apparent in the jury’s verdicts. From the failure to return a verdict on count 1, it appears that some, but not all, of the jurors agreed that defendant committed the affirmative act of inflicting injury upon V. These jurors may well have found defendant guilty of count 2 based upon the infliction of injury without concluding that defendant was criminally culpable for delaying treatment. The jurors who were not willing to convict defendant on count 1, appear to have been willing to convict defendant on count 2 on the basis of the delayed treatment only.

I do not disagree with the rule, relied upon by the majority, that a unanimity instruction is not required when “’”the evidence establishes a pattern of physical trauma inflicted upon a child within a relatively short period of time.”’” (Maj. opn., ante, at p. 6, quoting People v. Napoles (2002) 104 Cal.App.4th 108, 116.) Here, however, there was no evidence of a “pattern of physical trauma inflicted upon a child.” In Napoles and the other cases relied upon by the majority, the evidence showed multiple physical injuries inflicted upon the victim over a period of time. Under such circumstances, the jurors are not required to agree upon the particular injury. Here, at most, there was evidence that defendant inflicted a physical injury upon V. and evidence that defendant subsequently delayed treatment of the injury (by leaving the emergency room and not being forthright about the cause of the injury). The act of causing injury to V.’s kidney is clearly of a different nature and character from the passive conduct involved in this case. Unlike the multiple injuries inflicted upon the victim in Napoles, the different acts supporting count 2 in this case cannot reasonably be characterized as a “pattern of physical trauma.”

Moreover, while there may be no need for a unanimity instruction when dealing with a continuous course of conduct, it is clear from this record that members of the jury did not believe that defendant criminally inflicted the injury. Thus, rather than focusing on a continuous course of conduct, this jury appears to have divided the alleged wrongful conduct into separate discrete acts, with certain members believing that defendant inflicted the injury while others believed contrary.

For the foregoing reasons, I believe that the prosecutor did not elect the criminal conduct he was relying upon for count 2 and that a unanimity instruction was therefore required. The failure to give such an instruction was error. In light of the apparent disagreement among the jurors reflected in the verdicts, I cannot conclude that such error was harmless beyond a reasonable doubt. I would therefore reverse.

/s/ King

J.

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^[1] All statutory references are to the Penal Code unless stated otherwise.

^[2] All further statutory references are to the Penal Code unless otherwise indicated.