P. v. Frank

Filed 5/10/07 P. v. Frank CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant was convicted by a jury of two counts of corporal injury of a child, and one count of assault causing the death of a child under the age of eight. On this appeal, he contends that: (1) the trial court erred in admitting evidence of his objections to a police search of his home; (2) the trial court should have given a unanimity instruction on the count of assault causing death; (3) a juror should not have been discharged during deliberations; and (4) his sentence of 60 years 4 months to life in prison constitutes cruel and unusual punishment. We agree that the evidence of appellants objections to the search should not have been admitted, but find the error harmless beyond a reasonable doubt. We reject appellants other contentions, and affirm the conviction and sentence.

Facts and Procedural background

In January 2001, appellant and his girlfriend, Laurel Meiers, lived together with appellants five children, of whom he had custody, and Meierss son. Appellants oldest children were Jane, who was 10 at that time, and John, who was 8.[1] Appellants two middle children were toddlers. The youngest child, Michael, was 11 months old as of January 2001.

After dinner on January 22, 2001, all of the children were sitting together in one of the bedrooms with appellant and Meiers, who was reading them a story. Appellant and Michael were on the top bunk of the bunk bed shared by John and Meierss son. Michael began to cry, and appellant took him out of the room.

Shortly thereafter, Meiers heard a bang, and the window in the room shook a little. Within half an hour, Meiers heard appellants voice calling her into the master bedroom. When she got there, Michael was lying on the floor, and appellant was bending over him. Appellant told Meiers that Michael had stopped breathing. Appellant began giving Michael mouth-to-mouth resuscitation. He told Meiers not to call 911, but she did so anyway.

The ambulance arrived at 11:27 p.m., and Michael was taken to the hospital, barely breathing and with a very low pulse. Examination at the hospital revealed that he had both recent and older contusions on his arms and shoulders; subdural hematomas, also both recent and older, which indicated bleeding in the brain; blood behind his tympanic membranes in his ears; and retinal hemorrhaging in his eyes. Because these injuries are typically signs that a baby has been violently shaken, the doctors questioned appellant at the hospital. Appellant appeared concerned for the baby, but was reluctant to divulge information about his household, and suggested several different explanations for his injuries that the doctor did not believe were consistent with Michaels condition.

Because child abuse was suspected, a police officer was sent to the hospital to take photographs of Michael. Appellant asked the officer if the photographs were necessary, asked to see them on the display screen of the digital camera, and commented that the photographs made things seem worse than they actually were.

Michael was transferred to the pediatric intensive care unit at a hospital in San Francisco, where further examination confirmed that he had bruises of varying ages; severe retinal hemorrhages; swelling on his brain; and subdural hematomas, also of varying ages. Eventually, his condition stabilized to the extent that he could be discharged to a foster home operated by a pediatric nurse. He remained in a vegetative state and dependent upon a feeding tube, however, and ultimately died on July 24, 2001.

An autopsy revealed that Michael had subdural hematomas on both sides of his brain, and both retinal and optic nerve sheath hemorrhages in his eyes. Based on the autopsy findings, as well as Michaels medical records and history, the pathologist agreed with the treating physicians and the prosecutions expert that Michaels death was definitely caused by blunt force head injury, commonly known as shaken baby syndrome.

After appellant was arrested on the night Michael was taken to the hospital, the older children were taken into custody by Child Protective Services. Jane and John were observed to have bruises on their arms and legs, and swelling on their faces. Both children testified at trial, and appellant admitted, that he disciplined them by hitting them with a belt.[2] Meiers confirmed in her trial testimony that on several occasions during the time she lived with appellant, she had seen and heard appellant hitting John and Jane in order to discipline them, and that she had seen bruises on John. Meiers testified that she had tried to intervene, but that appellant had told her that they were his children and that she was not to interfere with his disciplining them.

Appellant was charged with two counts (one count each as to Jane and John) of inflicting corporal injury on a child (the corporal injury counts (Pen. Code,  273d, subd. (a)[3])), and one count of violating section 273ab (the section 273ab count) as to Michael. After a jury trial, appellant was convicted of all three counts, although a great bodily injury allegation as to one of the corporal injury counts was found not true. Appellant was sentenced to an aggregate term of 60 years 4 months to life in prison. This timely appeal ensued.

discussion

A. Evidence of Objections to Search

While appellant was at the hospital on the night Michael was injured, Meiers gave the police permission to search the family home. When appellant returned from the hospital, he found four police officers in the house. He immediately became agitated, and protested their presence. Over the objection of appellants trial counsel,[4] the officers testified at trial about appellants objections to their search of his home.

Appellant contends that the admission of the evidence of his objections to the police search of his home was error, on two grounds. First, he contends that it was more prejudicial than probative. (Evid. Code,  352.) Second, he relies on case law holding that evidence of a criminal defendants assertion of constitutional rights during the investigation of the crime cannot be admitted as evidence of the defendants consciousness of guilt. As the court commented in People v. Keener (1983) 148 Cal.App.3d 73, 78-79, [a]dmission of this questionably relevant evidence violate[s] the privilege to be free from comment upon the assertion of a constitutional right. [Citations.] . . . . []  Presenting evidence of an individuals exercise of a right to refuse to consent to entry in order to demonstrate a consciousness of guilt merely serves to punish the exercise of the right to insist upon a warrant. (See also People v. Wood (2002) 103 Cal.App.4th 803, 808-809.)

Respondent argues that even if appellants constitutional argument is correct, his conviction should nonetheless be affirmed because: (1) his conduct was limited to obstructing the police investigation, and cannot be characterized as an assertion of his constitutional rights under the Fourth Amendment; (2) appellants constitutional challenge to the admission of this evidence was forfeited, because the only ground for objection asserted by his trial counsel was Evidence Code section 352; and (3) admission of the evidence was harmless error for both constitutional and section 352 purposes.

We disagree with respondents first argument. Persons who are the target of a police search of their residencesthe core area protected by the Fourth Amendment[5]should not be held to the standards of constitutional law professors when attempting to articulate a demand that the police honor their constitutional rights. In the context of the invocation of the right to counsel, the United States Supreme Court has held that a suspect need not speak with the discrimination of an Oxford don,  but need only articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. (Davis v. United States (1994) 512 U.S. 452, 459; see also People v. Samayoa (1997) 15 Cal.4th 795, 829 [ no particular form of words or conduct is necessary on the part of a suspect in order to invoke his or her right to remain silent [citation], and the suspect may invoke this right by any words or conduct reasonably inconsistent with a present willingness to discuss the case freely and completely].)

Similarly, all that should be required to qualify a suspects objection to a police search of the suspects home as an invocation of the suspects constitutional rights is a statement that a reasonable police officer in the circumstances would understand as an unequivocal denial of permission to enter. For example, in People v. Wood, supra, 103 Cal.App.4th 803, a peace officer testified that when he requested permission to come onto the defendants property, the defendant responded,  You know better than that. Youre not coming on my property.  (Id. at p. 807.) The court characterized this simple statement as an invocation of [defendants] Fourth Amendment right which had been improperly [ ] used for the purpose of showing he had something to hide, or, in other words, demonstrating his consciousness of his guilt. (Id. at p. 809.)

Here, one of the investigating officers testified that appellant wanted us out of the house, asked for an attorney, and said his attorney will be contacting us in the morning. Another officer testified that appellant told the police that he didnt want us in his house, that we had no right to be there, [and] that we didnt have permission to be there. In our view, appellants statements that the police had no right to be in his home, taken together with his reference to an attorney, were sufficient to convey to a reasonable police officer that appellant was invoking his rights under the Fourth Amendment. Thus, his objections to the search fell within the scope of the case law barring the use of such statements as evidence against the defendant at trial. (See, e.g., People v. Wood, supra, 103 Cal.App.4th at pp. 808-809; People v. Keener, supra, 148 Cal.App.3d at p. 79.)

This brings us to respondents contention that appellants constitutional objection to the admission of this evidence was forfeited by his trial counsels failure to raise it as an alternative ground to his objection under Evidence Code section 352. (See People v. Kipp (2001) 26 Cal.4th 1100, 1122.) In general, forfeiture of a claim not raised in the trial court by a party has not precluded review of the claim by an appellate court in the exercise of that courts discretion. (In re Sheena K. (2007) 40 Cal.4th 875, 887-888, fn. 7.) However, there is an established rule that a forfeited claim of trial court error in admitting or excluding evidence is not subject to discretionary appellate review. (Ibid.)

The rule precluding discretionary review of forfeited evidentiary objections is subject to a limited exceptionî ºfor constitutional claims initially raised on appeal when closely related to claims raised at trial regarding the admission or exclusion of evidence. (In re Sheena K., supra, 40 Cal.4th at p. 888, fn. 7.) It does not appear, however, that the constitutional objection raised on appeal in this case falls within that exception. (See People v. Partida (2005) 37 Cal.4th 428, 431-437 [objection to gang evidence on Evidence Code section 352 grounds did not preserve objection that admission of such evidence independently violated constitutional due process rights, but did preserve argument that admission of evidence that should have been excluded under section 352 resulted in a trial so unfair as to violate due process].)

Nonetheless, in the present case appellant argues that his trial counsels failure to raise the constitutional objection at trial amounted to ineffective assistance of counsel. For this reason, applying a forfeiture rule . . . would likely have the effect of converting an appellate issue into a habeas corpus claim of ineffective assistance of counsel for failure to preserve the question by timely objection. (People v. Butler (2003) 31 Cal.4th 1119, 1128.) Thus, in the interest of judicial economy, we will address the issue on its merits. (See People v. Marlow (2004) 34 Cal.4th 131, 150; People v. Chaney (2007) 148 Cal.App.4th 772, 780.)

Respondent contends that any error in admitting the challenged evidence was harmless.[6] As to the two charges involving the older children, this issue is easy to resolve. The evidence introduced at trial made it abundantly clear that appellant disciplined his two oldest children by hitting them with a belt hard enough to bruise them. In his trial testimony, appellant himself admitted spanking John and Jane with a belt. Thus, the error in admitting the evidence of respondents objections to the search of his home was harmless beyond a reasonable doubt as to these charges. Appellant does not argue otherwise on this appeal.

Even as to the section 273ab count, the evidence of appellants guilt was extremely strong. Appellant characterizes the forensic medical evidence regarding the cause of Michaels death as equivocal, but our review of the record belies this contention. The pediatric intensive care doctor who treated Michael in San Francisco opined at trial that it was very likely that shaken baby syndrome or some form of nonaccidental trauma had caused Michaels injuries. The ophthalmologists who examined Michael said that his retinal hemorrhages were among the worst that theyve ever seen in their careers. The prosecutions medical expert on child abuse opined that Michaels injuries were unquestionably the result of an abusive head injury, and could not have been caused by his falling off the bed.

Appellant also contends that the evidence that he was the one who inflicted Michaels injuries was less than overwhelming, pointing to the fact that aspects of Meierss trial testimony were inconsistent with her pretrial statements to the police, to appellants mother, and to her friends. Meiers plausibly explained the inconsistencies at trial, however, and insisted that her trial testimony, which was consistent with the forensic evidence, was the true story. The jurys verdict makes clear that it chose to believe her on that point. Our review of the record leads us to conclude beyond a reasonable doubt that the jurys credibility determination in that regard would not have been different if the evidence of appellants objections to the search of his home had been excluded.

Finally, besides the testimony about appellants objections to the search of his home, there was other evidence of his consciousness of guilt, which appellant does not contend was admitted in error. First, Meiers testified at trial that when appellant called her into the master bedroom because Michael had stopped breathing, he told her not to call 911. Second, appellant objected to the police photographing Michaels bruises in the emergency room. Third, appellant suggested to the treating doctor several different explanations as to how Michael could have incurred his injuries, none of which were consistent with the severity of Michaels condition.

Finally, Meiers testified that on the day after Michael was taken to the hospital, appellant called her and suggested that his injuries might have resulted from a car accident that had occurred during a family trip, but Meiers did not find this explanation credible because the family had taken two cars, and Michael had been riding in the car that was not involved in the accident. Appellant also asked Meiers if she remembered Michaels having fallen off the bed in the master bedroom, an incident of which she remembered nothing.

Given this evidence of appellants defensive efforts, the testimony about his objections to the police search of the home was cumulative, at best, on the issue of consciousness of guilt. For all of the foregoing reasons, we find its admission to have been harmless beyond a reasonable doubt.

B. Unanimity Instruction

On the counts charging appellant with corporal abuse of his two older children, the jurors were instructed that the prosecution had introduced evidence of more than one act upon which a conviction could be based, and that in order to return a verdict of guilty all jurors must agree that [appellant] committed the same act or acts. (CALJIC No. 17.01.) The jurors were not given such a unanimity instruction with respect to the count charging appellant with causing Michaels death under section 273ab.

Appellant contends that this was error. He argues that because there was evidence at trial indicating that appellant had shaken or otherwise assaulted Michael on more than one occasion, the jury could have found that appellant was guilty of violating section 273ab without necessarily agreeing as to the particular assault constituting that crime. Thus, appellant contends, the unanimity instruction was required on the section 273ab count as well.

Respondent argues that a unanimity instruction is not required where the acts shown by the evidence constitute a single transaction or continuous course of conduct (People v. Rae (2002) 102 Cal.App.4th 116, 122), and that child abuse constitutes a continuous conduct crime. (People v. Sanchez (2001) 94 Cal.App.4th 622, 631.) We need not address this contention, because the issue is simply one of statutory construction.

The crime prohibited by section 273ab is defined as follows: Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the childs death, shall be punished by imprisonment in the state prison for 25 years to life. ( 273ab, italics added.) The italicized language requires that in order to convict a defendant under section 273ab, the prosecution must prove not only that the defendant assaulted the child with the requisite degree of force, but also that the charged assault caused the childs death. (See People v. Norman (2003) 109 Cal.App.4th 221, 231 [the actual death of a child under age eight is an element of the crime under section 273ab (italics in original)]; People v. Preller (1997) 54 Cal.App.4th 93, 96-98 [section 273ab requires degree of force that reasonable person would know was likely to result in great bodily injury, and requires that death of child result from such force]; see also CALJIC No. 9.36.5 [elements of section 273ab include death of child resulting from assault].)

In the present case, the evidence showed that the only assault on Michael by appellant that could reasonably be found to have caused Michaels death was the one that immediately preceded Michaels hospitalization.[7] Thus, although there was evidence of multiple assaults, only the ultimate one was, or for that matter could have been, prosecuted as a violation of section 273ab. Accordingly, this case involved only one discrete crime, rather than multiple crimes, and no unanimity instruction was required. (Cf. People v. Russo (2001) 25 Cal.4th 1124, 1132-1133 [where only one conspiracy is charged, there is only one crime, and jury need not agree unanimously as to the identity of the overt act supporting conviction].)

The cases relied on by appellant are not to the contrary.[8] In People v. Dellinger (1984) 163 Cal.App.3d 284, 289, the defendant was charged with first degree murder of a child (rather than with a violation of section 273ab), and the evidence showed that the victims death had been caused either by the ingestion of cocaine, or by blunt force trauma to the head, or both. The court held that a unanimity instruction was required in order to ensure that the jurors agreed unanimously on what act the defendant had committed that caused the childs death. (Id. at pp. 300-302.) In People v. Espinoza (1983) 140 Cal.App.3d 564, the prosecutor argued at trial that the defendant could be convicted of assault with a deadly weapon based either on the defendants own use of a knife, or on his confederates use of a rifle during the same robbery. (Id. at p. 567.) The appellate court held that a unanimity instruction should have been given, because the physical acts involving the knife were not identical to those with the gun, so the jury could have found the defendant guilty without agreeing as to what act or acts constituted assault with a deadly weapon. (Id. at p. 569.)

Both of these cases are distinguishable, because here, there was no evidence that Michaels death was caused by anything other than blunt force trauma to his head. Thus, the only issues were whether appellant had inflicted that trauma, and, in so doing, had used the degree of force required by section 273ab. Appellant does not argue that the instructions given failed to require unanimity on those two issues.

C. Discharge of Juror

During jury selection, one of the prospective jurors explained that a nephew of hers had been falsely accused of a crime, and although the charges were ultimately dismissed, she felt that the system had responded with a rush to judgment in arresting him without getting all the facts. Nonetheless, the juror was selected to serve as trial Juror No. 6.

During the afternoon of the first full day of deliberations, Juror No. 6 became very upset, and requested to be relieved from jury duty. She averred that her personal beliefs and feelings were interfering with her ability to participate in the deliberations, and that she had been made to feel I cant be fair and impartial, although she felt she had in fact been so. The trial judge interviewed her at some length in chambers, with counsel present. The judge asked Juror No. 6 whether she could put aside her personal feelings and decide the case based on the evidence, and she reluctantly agreed that she could. Ultimately, despite some reservations about Juror No. 6s responses during the interview, the judge declined to find good cause to discharge her at that time.

The following day, in the late morning, the jury foreperson reported to the court that the jury had reached a verdict on the corporal abuse charge as to Jane, and might be able to resolve another of the charges if it deliberated further, but that the jury considered itself hung on the remaining charge. One vote had been taken on each of the two unresolved charges, and the tally of the votes had been 11 to 1 in each case. The judge directed the jury to continue deliberating, and asked them to send the court any questions or requests for assistance that they might have.

Ten minutes later, the jury sent the court two questions: (1) How do personal feelings affect the decision? and (2) Can we draw inferences from things that are not in evidence? The trial court responded by directing the jurys attention to the standard instructions regarding the need to decide the case based on the evidence presented, and not in accord with passion or prejudice.

Just after the lunch recess on the same day, the foreperson reported to the court that Juror No. 7 had revealed that he had engaged in a conversation with Juror No. 6, during which Juror No. 6 had discussed the three strikes law and indicated that she would not send a black man to prison for 25 years. Upon inquiry by the trial judge, Juror No. 7 confirmed that the conversation had occurred. He quoted Juror No. 6 as stating that This isnt [going to] happen, and that Im not sending a black man to jail for 25-to-life.

The trial judge then questioned Juror No. 6 about the reported conversation. Juror No. 6 acknowledged that she had discussed the case with Juror No. 7, and that she had mentioned the possibility that appellant would be convicted of three felonies, but she denied mentioning the three strikes law or the possible sentence appellant would receive if convicted. The judge found Juror No. 7 credible, and ruled that Juror No. 6 had been untruthful about the conversation, and had a personal bias based on the three strikes law. Accordingly, the court discharged Juror No. 6.

Appellant now contends that this was error. We review the trial courts decision to discharge a juror during deliberations for abuse of discretion, and will uphold it if there is substantial evidence to support it. (People v. Cleveland (2001) 25 Cal.4th 466, 474.) Nonetheless, we must also apply the principle that, as our Supreme Court has put it, a court may not dismiss a juror during deliberations because that juror harbors doubts about the sufficiency of the prosecutions evidence. (Id. at p. 483.) Moreover, as appellant correctly notes, discharge of a juror must be based on a demonstrable reality of good cause. (Id. at p. 484.)

The trial court heard the testimony of both Juror No. 6 and Juror No. 7 about their conversation, and chose to believe Juror No. 7. We cannot disturb that credibility determination on appeal. (Cf. People v. Farnam (2002) 28 Cal.4th 107, 132 [[W]e . . . accept as binding the trial courts determination as to [a] prospective jurors true state of mind when the prospective juror has given conflicting or ambiguous statements. [Citations.] (Fn. omitted.)].) Accordingly, we must accept the trial courts implied finding that Juror No. 6 was disagreeing with the other jurors not because she found the prosecutions evidence inadequate, but because of her reluctance to send a black man to prison for 25 years, regardless of what the evidence might show.

That statement was sufficient to establish as a demonstrable reality that Juror No. 6 was allowing her bias against the three strikes law, and against the criminal justice system in general, to infect her deliberations. It therefore constituted good cause to dismiss her for refusing to deliberate in accordance with the courts instructions. Under California law, this result is not affected by the fact that Juror No. 6 appears to have been a lone holdout for acquittal on the section 273ab count. (People v. Cleveland, supra, 25 Cal.4th at p. 484.) We therefore find no abuse of discretion in the trial courts discharge of Juror No. 6.

D. Cruel and Unusual Punishment

Although section 273ab defines a general intent crime, and does not require that the defendant have the subjective intent to kill or even injure the victim, it nonetheless carries a penalty of 25 years to life in prison. (See People v. Albritton (1998) 67 Cal.App.4th 647, 658-659; People v. Preller, supra, 54 Cal.App.4th at pp. 96-98.) In the present case, when this sentence was combined with the prison terms stemming from the other two counts of which appellant was convicted in this case, plus his prior serious felony conviction, appellant was sentenced to an aggregate term of 60 years 4 months to life in prison.

Appellant contends that this result constitutes cruel and unusual punishment, for several reasons. First, he notes that the state of mind required by section 273ab is comparable to the criminal negligence required for involuntary manslaughter, which is punishable by a maximum of four years in prison ( 193), and thus that the far greater term permitted under section 273ab is disproportionate to the offense. He also compares it to similar statutes in other jurisdictions that carry significantly less onerous penalties. Finally, he argues that the penalty is disproportionate to the facts of this particular case.[9]

Appellants claim as to the general disproportionality of the sentence for section 273ab, both by comparison with other California offenses and with similar offenses in other states, was considered and rejected in People v. Lewis (2004) 120 Cal.App.4th 837, 854-856. (Accord, People v. Norman, supra, 109 Cal.App.4th at pp. 229-232.) We agree with the reasoning of that court, and reach the same result here. We do not believe that it  shocks the conscience and offends fundamental notions of human dignity  (People v. Dillon (1983) 34 Cal.3d 441, 478) to impose a sentence of 25 years to life in prison on a person who assaults a small child in his or her care or custody with a degree of force that a reasonable person would know was likely to cause great bodily injury, and who ends up killing the child as a result. Such conduct evinces profound and callous disregard for the life of an exceptionally vulnerable victim, and entails a level of criminal culpability that may reasonably be viewed as exceeding that associated with involuntary manslaughter.

As for appellants particular circumstances, his trial testimony showed that he saw himself as perfectly within his rights in disciplining his older children by striking them repeatedly with a belt. The forensic evidence showed that the assault which ultimately caused Michaels death was only the last in a series of incidents resulting in retinal hemorrhaging and subdural hematomas, indicating that Michael had been violently shaken on more than one occasion. Appellant had two prior convictions for resisting arrest, and one for assault with intent to commit rape, which resulted in the doubling of the term that would otherwise have been imposed for his section 273ab conviction. Under these circumstances, we are not persuaded that the sentence appellant received constituted cruel and unusual punishment.

disposition

The judgment is affirmed.

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Ruvolo, P. J.

We concur:

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Sepulveda, J.

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Rivera, J.

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[1] The pseudonyms Jane and John Doe II were used at trial to refer to the two oldest children. We will refer to these children as Jane and John, as the parties have done in their briefs on appeal. Appellants youngest child was originally referred to in the indictment as John Doe I, but at trial, he was called by his real name, Michael, and we will follow suit.

[2] The two oldest childrens trial testimony was inconsistent with their pretrial statements on some matters of detail, but there was overwhelming evidence that appellant disciplined them by beating them with a belt, and that they both had bruises at the time appellant was arrested. Appellant does not contend otherwise on this appeal.

[3] All further statutory references are to the Penal Code unless otherwise noted.

[4] The objection was interposed by means of a motion in limine, which was denied.

[5]  [P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable. [Citations.] (People v. Robles (2000) 23 Cal.4th 789, 795, quoting United States v. Karo (1984) 468 U.S. 705, 714.)

[6] In People v. Wood, supra, 103 Cal.App.4th at p. 810, the court applied the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24), under which error must be found to have been harmless beyond a reasonable doubt, to the defendants constitutional claim, without discussing what standard should apply. Because we conclude, post, that the error in this case was harmless under the stringent Chapman standard, we also have no need to address whether a lesser standard of harmless error is applicable.

[7] The medical evidence did indicate that Michael had injuries that appeared to have been the result of abuse predating his admission to the emergency room on January 22, 2001. In addition, Meiers testified at trial that on January 21, 2001, she entered the babys room after hearing banging noises, and saw appellant holding Michael up against a wall, with his hand around the babys neck. However, the pathologist who autopsied Michael testified that although some people would say that you can deliver lethal head trauma to an infant and there are no symptoms at all, and that child carries on normally for hours, if not days, . . . and then all of a sudden dies, he personally ha[d] a hard time conceptually coming to grips with a lethally injured child who acts normal for perhaps a prolonged period of time. Moreover, Meiers testified that despite the assault she witnessed on January 21, 2001, Michaels behavior on the following day appeared normal, except for sleepiness and lack of appetite that she attributed to his having had a cold from which he was still recovering. Thus, the theory that Michael was killed by the assault on January 21, 2001, rather than by the one immediately preceding his hospitalization, did not have sufficient support in the evidence to require a unanimity instruction. Alternatively, to the extent that there was evidence tending to indicate that Michaels death was caused by the cumulative effect of multiple assaults, such evidence would show a continuous course of conduct on appellants part, and thus also would not require a unanimity instruction. (See People v. Rae, supra, 102 Cal.App.4th at p. 122; People v. Ewing (1977) 72 Cal.App.3d 714, 716-717.)

[8] In addition to the cases discussed in text, appellant also relies on People v. Ramirez (1987) 189 Cal.App.3d 603, 613-615. This case is relevant to appellants argument, however, only insofar as it indicates that a jury must unanimously agree on an overt act in a conspiracy case. On this point, People v. Ramirez appears to have been overruled by People v. Russo, supra, 25 Cal.4th at p. 1134.

[9] Respondent contends that appellant forfeited this claim by failing to raise it in the trial court. We are inclined to disagree (see generally People v. Cromer (2001) 24 Cal.4th 889, 899), but inasmuch as we reject it on its merits, we need not resolve this question.