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Name: People v. Delgado
Case #: B213271
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 04/29/2010

A unanimity jury instruction is not required where the evidence shows the charged offense consists of multiple acts in a continuous course of conduct. Appellant was convicted by a jury of dependant elder abuse, criminal threats, and attempted criminal threats. On appeal she argued that the court erred in failing to give the jury a unanimity instruction on the dependant elder abuse offense. Appellant is the mother of an adult, quadriplegic son who lived in the sub acute unit of a hospital. According to evidence received by the jury, during the period of time specified in the abuse charge, appellant interfered with her son’s care by ordering hospital staff not to turn him for bed sore treatment, forbidding staff from trying to wean him from a ventilator, trying to forcibly remove him from hospital care, and refusing to wear isolation gear when he became infected with antibiotic resistant bacteria. Where a conviction on a single charge can be based on evidence of two or more separate criminal acts, all jurors must agree that defendant committed the same act, and the court is required to instruct on unanimity. An exception to this rule is where the evidence shows multiple acts in a continuous course of conduct, a situation which often applies to abuse crimes. Here, where appellant was charged with conduct occurring between two specified dates, the issue was whether she was guilty of the course of conduct and not whether she had committed a particular act on a particular date. Therefore, no unanimity instruction was required.
For the purposes of Penal Code section 422, a criminal threat can be conveyed through a third party. The jury also received evidence that during a telephone conversation with her son, appellant told her son to tell the nurses present in his room at the time that she would find where they lived and come and get them. The court found that the surrounding circumstances supported an inference that appellant’s statement to her son over the telephone was a threat to cause the victims harm, sufficient to support the conviction for section 422 and attempted section 422. Appellant had intended the nurses hear the threat; she had been physically aggressive to hospital staff in the past; she knew the location of the nurses at the time of the call; and could go to the hospital and follow them home and harm them.
Amended Penal Code section 4019 is retroactive. Referencing decisions in Division One of the Second District, Division Two of the First District, and the Third District Courts of Appeal, the court agreed that amended Penal Code section 4019 has retroactive application.