Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE605440
Premo, Acting P.J.
After his infant son suffered broken ribs, bruises, and abrasions, a jury convicted defendant Jacob Isaiah Esau of one count of felony child abuse/endangerment. (Pen. Code, § 273a, subd. (a).) It also found true a special allegation for purposes of a sentence enhancement that defendant had personally inflicted great bodily injury on the victim. (§ 12022.7, subd. (d).) At trial, the prosecutor argued that the jury could convict defendant of the crime either because he willfully injured the victim (which we will refer to as child abuse) or because he was criminally negligent in failing to obtain medical care for the victim in a timely fashion (which we will refer to as child endangerment). The trial court did not instruct the jury that it had to unanimously agree on child abuse or child endangerment as the basis for a guilty verdict. On appeal, defendant contends that the trial court erred by failing to instruct the jury sua sponte on the unanimity principle. He reasons that some of the jurors may have found him guilty of child abuse while others may have found him guilty of only child endangerment. We agree. We conclude, however, that the error was harmless because, under the facts of this case, the jury’s unanimous finding that defendant personally inflicted great bodily injury necessarily shows that the jury rendered a unanimous verdict for child abuse. We also agree with defendant’s secondary contention that the trial court erred by ordering a victim-restitution payment of $1,366 to the Santa Clara County Child Protective Services (§ 1202.4, subd. (f)) for the cost of providing foster care. We therefore modify and affirm the judgment.
Further unspecified statutory references are to the Penal Code.
BACKGROUND
Defendant lived with C.B. and their three-week-old son. On October 2, 2006, C.B. and the baby went to bed at 10:00 p.m., while defendant worked on his computer and watched television in the bedroom. At 2:00 a.m., C.B. awoke to feed the baby. Afterward, she gave the baby to defendant and went back to sleep. After an hour, she heard the baby cry out as if in pain and took him from defendant. The baby cried and whined every 15 minutes until 10:00 a.m. when C.B. left the bedroom to make breakfast. When C.B. returned to the bedroom, defendant said that something was popping out of the baby’s rib. C.B. called a nurse and obtained a hospital appointment for 4:00 p.m. X-rays showed two or three broken ribs. The baby also had fingernail scratches on his back and chest, bruises on the neck and arm, and a subconjunctival hemorrhage in the left eye.
The information alleged one count and one enhancement as follows: “On or about October 2, 2006,... the crime of CAUSING OR PERMITTING A CHILD TO SUFFER OR INFLICTING PAIN OR SUFFERING ON A CHILD, in violation of PENAL CODE SECTION 273a[, subdivision] (a), a Felony, was committed by [defendant] who did under circumstances and conditions likely to produce great bodily harm and death, willfully caused and permitted a child... to suffer, and inflicted on that child unjustifiable physical pain and mental suffering. [¶] (GBI4) It is further alleged that in the commission and attempted commission of the felony charged above, the defendant... personally inflicted great bodily injury upon [the victim]... within the meaning of Penal Code sections 12022.7[, subdivision] (d) and 1203[, subdivision] (e)(3).”
The People’s expert witness opined as follows: “His diagnosis is child abuse and subcategory of that is battered child syndrome because he has had more than one injury. So you can have child abuse due to rib fractures. But in this case, it’s child abuse with rib fractures, bruising, and abrasions.”
Defendant testified to the following: he dozed off watching television while holding the baby; the baby wiggled out of his grasp and fell away; he grabbed the baby “a little too hard” around the midsection and stopped the fall; he did not tell C.B. about grabbing the baby; he did not think that he had injured the baby until he felt the popping; he squeezed the baby’s ribs during the fall by mistake.
The prosecutor argued that “There are two ways he’s committed a violation of Penal Code [section,] 273a, and that’s because you have your choice here of those two ways. I think the clearest way is this first choice. You have, he did these two elements of the crime. But you have a second choice of what is called criminal negligence. And I think, you know, that--you could possibly assume if you--if you want, you find that violation too. But let me talk about what I believe is the law that applies here and is most clear. [¶] Willfully inflicted. The defendant willfully inflicted unjustifiable physical pain or mental suffering upon a child.... [¶]... It wasn’t accidental. He intentionally grabbed that child and squeezed him. That’s what willfully means here. That’s all. Not that he intended to hurt his child. [¶]... [¶] And inflicted. I think the way defendant’s choice is he personally inflicted because the law will hold you responsible for child abuse even if you don’t personally inflict under the second choice here.... [¶] And also the second element, basically the second element is that... this is great bodily injury here.... [¶]... [¶] To make sense of this instruction, you have an alternative way he could be guilty for this felony violation, and that is if he didn’t--again, he has to act willfully but he didn’t inflict it himself. He merely caused or permitted [it]. He, a parent under this second alternate scenario, you’re responsible for your child.... You haven’t inflicted it as far as the law’s concerned or you could make that argument, but you permitted it. You’ve caused it, and that’s the distinction we’re drawing here between these two points in this instruction. [¶]... [¶]... Assuming you wanted to give him every benefit of the doubt, he admitted to me he knew that he was criminally negligent for letting that baby scream in pain an agony for the next seven hours, ignoring him or trying to ignore him while he thought up what to say or hoped it would go away until ten o’clock in the morning when he--he suddenly discovered, hey, I hear a popping sound. Well, that is at least criminal negligence.”
Defendant argued that he was not guilty of willful infliction because he “grabbed his chest too forcefully, accidentally” and not guilty of criminal negligence because he “did not withhold information that allowed [the baby] to suffer.”
The trial court instructed the jury in the language of the information and, as follows, in the language of CALCRIM Nos. 821 and 3162.
“The defendant is charged in count one with child abuse likely to produce great bodily harm. To prove that the defendant is guilty of this crime, the People must prove that, number one, the defendant willfully inflicted unjustifiable physical pain or mental suffering on a child and, number two, the defendant inflicted pain or suffering on a child under circumstances likely to produce great bodily harm. Or alternatively, the defendant willfully caused or permitted a child to suffer unjustifiable physical pain or mental suffering and the defendant caused or permitted the child to suffer or be injured or be in danger under circumstances or conditions likely to produce great bodily harm. And the defendant was criminally negligent when he caused or permitted the child to suffer or be injured. [¶] Someone commits an act willfully when he or she does it willingly or on purpose... not by accident.... [¶] Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person committed criminal negligence when, number one, he or she acts like a reckless way that creates a high risk of death or great bodily harm and a reasonable person would have known that act in that way would create such a risk.”
“[I]f you find the defendant guilty of the crime charged in count one then you move on to the allegation.... [¶] To prove this allegation, the People must prove that, number one, the defendant personally inflicted great bodily injury on [the victim]....”
DISCUSSION
“It is well established that the entire jury must agree upon the commission of the same act in order to convict a defendant of the charged offense.” (People v. Muniz (1989) 213 Cal.App.3d 1508, 1517.) “When a defendant is charged with a single [crime] but the evidence reveals more than one [criminal] act, the prosecution must either select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. [Citations.] 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.” (People v. Brown (1996) 42 Cal.App.4th 1493, 1499-1500; see Cal. Const., art. I, § 16.) Even when the defendant does not request a unanimity instruction, “such an instruction must be given sua sponte where the evidence adduced at trial shows more than one act was committed which could constitute the charged offense, and the prosecutor has not relied on any single such act.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.)
Here, the People offered evidence of, and argued, defendant’s guilt based on more than one act that occurred on October 2, 2006. The People’s argument that defendant was guilty of child abuse rested on evidence that he broke the victim’s ribs on the morning of October 2. In contrast, the People’s argument that defendant was guilty of child endangerment rested on evidence that he waited nearly seven hours to seek medical assistance after knowing the victim was injured.
It is true that, “where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty.” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) That rule does not apply here, however, because under the evidence in this case, child abuse based on breaking the victim’s ribs was a “discrete crime” from child endangerment based on failing to seek medical care in a timely fashion.
It has been noted that juror unanimity is not required when the crime charged involves a continuous course of conduct or a series of acts over a period of time, and felony child abuse/endangerment under subdivision (a) of section 273a can be such a crime. (People v. Napoles (2002) 104 Cal.App.4th 108, 115.) “This exception arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. (E.g., People v. Mota (1981) 115 Cal.App.3d 227, 231-234 [repeated acts of rape during one hour].) The second is when... the statute contemplates a continuous course of conduct of a series of acts over a period of time. (People v. Ewing (1977) 72 Cal.App.3d 714, 717 [child abuse].)” (People v. Thompson (1984) 160 Cal.App.3d 220, 224.) “The ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
However, “child abuse is not invariably charged as a course of conduct offense; one act or omission constituting abuse may be sufficient for conviction.” (People v. Napoles, supra, 104 Cal.App.4th at p. 116.) “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.” (People v. Russo, supra, 25 Cal.4th at p. 1135.)
The first situation is presented in this case because the People sought to prove either an act or an omission as the basis for the crime. The act (breaking ribs) and omission (failure to seek timely medical care) were not “so closely connected that they form[ed] a single transaction or... a continuous course of conduct.” (People v. Rae (2002) 102 Cal.App.4th 116, 122.) It is true that one could conceptualize a one-time-act-child-abuse and a one-time-omission-child-endangerment scenario as a single, continuous course of conduct by viewing the endangerment as an extension of the abuse. But, this cannot be done when a defendant offers separate defenses. Here, defendant asserted two distinct defenses and the jury could have believed that defendant negligently delayed seeking medical care after discovering the victim in distress without believing that defendant had willfully inflicted the distress in the first place. Indeed, the prosecution specifically offered child endangerment as an alternative if the jury “wanted to give [defendant] every benefit of the doubt” about defendant’s accident defense. Under these circumstances, the failure to give a unanimity instruction was error.
The People rely on People v. Vargas (1988) 204 Cal.App.3d 1455 (Vargas), and People v. Napoles, supra, 104 Cal.App.4th 108, but those cases are inapposite.
In Vargas, “The case... involve[d] burns, bruises, contusions, whipping injuries, and bites inflicted within a mere 10-day period” (Vargas, supra, 204 Cal.App.3d at p. 1462) and the defenses that the defendant was unable to transport the victim to the hospital and was planning to do so when the police officer arrived at her home. The court reasoned that repeated injuries in “a brief time span suggest a systematic pattern of abuse rather than separate, isolated incidents.” (Id. at p. 1463.) Accordingly, the court held, “Where, as in the case before us, 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 (set forth in Ewing) that jury unanimity is not required as to the underlying conduct constituting the violation of section 273a.” (Id. at p. 1464.) As to the claim that some of the jurors could have found that the defendant had committed child abuse while others may have found that the defendant had committed child endangerment, the court held that “our holding is premised upon our conclusion that only a single course of conduct is reflected in the evidence presented to the trier of fact.” (Ibid.) The court then addressed the dissenting opinion’s point that the unanimity instruction was required because there were two courses of conduct, one for child abuse and one for child endangerment. In so doing, it adhered to its opinion that there was a single course of conduct and opined that the facts simply presented different legal theories: “Where a single course of conduct is proved at trial, it is permissible for members of the jury to determine that the underlying facts establish a violation of the statute under different legal theories such as direct infliction of abuse or permitting the child’s health or safety to be endangered. The jury need not agree unanimously on the legal theory that defines a given set of facts as criminal conduct.” (Id. at p. 1465.) It concluded: “In view of the evidence before the trial court, we hold applicable to the present case the well-established rule recognized in People v. Ewing, supra, 72 Cal.App.3d 714, 717, that the giving of an instruction, sua sponte, requiring jury unanimity is ‘inappropriate’ where a single course of conduct in violation of the child abuse and endangerment statute is established.” (Id. at p. 1467.)
Thus, Vargas rested on the court’s conclusion that the evidence at trial showed a single course of conduct involving multiple acts of child abuse and multiple acts of child endangerment. Here, although there was evidence of battered child syndrome, the People presented the case as one involving a distinct act and a distinct omission rather than a single course of conduct. To the extent that Vargas suggests that child abuse and child endangerment are alternative legal theories rather than alternative bases of culpability, this suggestion must be taken in the context of its conclusion that the evidence showed only a single course of conduct.
In Napoles, the court relied on two factors to conclude that a course of conduct had been alleged and proved, eliminating the need for a unanimity instruction. First, the accusatory pleading alleged one count for misconduct occurring between two specified dates: “This language alerts the jury that the charge consists of a continuous course of conduct, to be proved by evidence of more than one individual act.” (Napoles, supra, 104 Cal.App.4th at p. 117.) Second, the evidence established a pattern of physical trauma inflicted upon the victim within a relatively short period of time: “Like those in Vargas, the injuries inflicted on the baby in this case ‘suggest a systematic pattern of abuse rather than separate, isolated incidents.’ ” (Ibid.)
These same two factors require a different result here. First, the information alleged one count that occurred on one specific date. Unlike the situation in Napoles, the jury here was not alerted, at the inception of the case, that the charge consisted of a continuous course of conduct to be proved by evidence of more than one individual act. And second, the evidence established one discrete act and one discrete omission, either one of which was sufficient to convict, rather than a continuous course of conduct.
In People v. Vargas (2001) 91 Cal.App.4th 506, 561, we acknowledged that “[t]here is a split of authority on the proper standard for reviewing prejudice when the trial court fails to give a unanimity instruction.” Some cases apply the “harmless beyond a reasonable doubt” standard under Chapman v. California (1967) 386 U.S. 18, 24; other cases apply the standard from People v. Watson (1956) 46 Cal.2d 818, 836, which is whether “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (See e.g., People v. Jenkins (1994) 29 Cal.App.4th 287, 298-299 [applying Watson]; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536 [applying Chapman].) The Watson standard is used by courts that conclude that the state constitution is the source of the unanimous verdict requirement. (People v. Vargas, supra, at p. 562; People v. Patrick (1981) 126 Cal.App.3d 952, 967.) The Chapman standard is used by courts that conclude that a nonunanimous verdict denies due process, violating the federal constitution, by effectively lowering the prosecution's burden of proof. (People v. Melhado, supra, at p. 1536; People v. Deletto (1983) 147 Cal.App.3d 458, 472.) In People v. Vargas, supra, at page 562, we held that, “Watson provides the correct standard on the issue.” In any event, the trial court’s error in failing to give a unanimity instruction was harmless even under the Chapman standard because it is possible to “ ‘gauge the precise effect’ [citation] of the instructional lacuna upon the verdict actually rendered.” (People v. McNeill (1980) 112 Cal.App.3d 330, 336.)
Here, by finding the enhancement allegation true, the jurors unanimously agreed that defendant had personally inflicted great bodily injury (GBI) upon the victim. There is no technical definition of the “personally inflict” element of the GBI enhancement. As used in section 12022.7, “[t]o ‘personally inflict’ an injury is to directly cause an injury, not just to proximately cause it.” (People v. Rodriguez (1999) 69 Cal.App.4th 341, 347.) “To ‘personally inflict’ injury, the actor must do more than take some direct action which proximately causes injury. The defendant must directly, personally, himself inflict the injury.” (Id. at p. 349; People v. Cole (1982) 31 Cal.3d 568, 572 [the GBI enhancement applies only to a person who “directly acted to cause the injury” and who “himself [or herself] inflicts the injury”].) The defendant must commit a volitional act. (People v. Guzman (2000) 77 Cal.App.4th 761, 764.) While it is conceivable that a person who neglects to obtain medical care in a timely manner can be deemed to have personally inflicted the injuries that result from the delay, in this case, the injury in question is the broken ribs rather than the aggravation of a broken-rib injury by delay. Thus, by finding the GBI enhancement true, the jury necessarily found that defendant broke the victim’s ribs. Since the jury could not logically find that defendant broke the victim’s ribs via passive criminal negligence (child endangerment), the jury necessarily found that defendant willfully injured the victim (child abuse). Moreover, the prosecutor argued this logic by explaining to the jury that “the law will hold you responsible for child abuse even if you don’t personally inflict under the second choice here” and, under the second choice (child endangerment), “he has to act willfully but he didn’t inflict it himself.”
Thus, the jury’s finding that defendant had personally inflicted great bodily injury on the victim shows beyond a reasonable doubt that the jury unanimously agreed, at the very least, that defendant was guilty of the child abuse prong of section 273a. Regardless of whether the error in failing to instruct on the unanimity principle is measured by the Chapman standard or the Watson standard, the error was nonprejudicial.
VICTIM RESTITUTION
At sentencing, in addition to other fines, the trial court ordered defendant to pay restitution in the amount of $1,366 to Santa Clara County Child Protective Services (CPS) for the amount paid toward foster care for the victim.
A person convicted of a felony faces the imposition of victim restitution, an order enforceable as if it were a civil judgment. (§ 1202.4, subd. (a)(3)(B).) The trial court “shall” order restitution in every case in which a victim has suffered economic loss in an amount based on the amount of loss. (Id., subd. (f).)
Defendant contends that the trial court erred by ordering the payment of victim restitution to the CPS because the CPS was not a victim. We agree.
Preliminarily, the People argue that defendant has forfeited this claim by failing to object below.
Although a defendant has the right to a court hearing to dispute the amount of restitution or the manner in which it is to be made (§§ 1202.4, subd. (f)(1), 1203, subd. (d), 1203.1, subd. (k); People v. Carbajal (1995) 10 Cal.4th 1114, 1125), if the court, as here, does not order more restitution than the probation report recommends, failure of the defendant to request a hearing on such matters usually waives any error. (People v. Foster (1993) 14 Cal.App.4th 939, 949.) Defendant, however, does not challenge the amount of the restitution to the CPS or the manner in which such restitution would be paid, but rather challenges only whether the CPS is a “direct” victim within the meaning of section 1202.4. As defendant’s claim is essentially that restitution to the CPS is “unauthorized” as a matter of law, i.e., that it could not lawfully be imposed under the circumstances presented in this case, it is not forfeited by failure to object below. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1533-1534.)
Generally, restitution under section 1202.4 is limited to “direct” victims, i.e., those persons or entities against whom or which the crime was committed. (§ 1202.4, subd. (k); People v. Torres (1997) 59 Cal.App.4th 1, 5 (Torres); People v. Valdez (1994) 24 Cal.App.4th 1194, 1200.) For example, a governmental entity, such as a welfare agency, is a direct victim entitled to victim restitution under section 1202.4 when the defendant has defrauded it, making the agency the object of the defendant’s crime. (See People v. Crow (1993) 6 Cal.4th 952, 957.) Conversely, a governmental entity is not entitled to restitution under section 1202.4 when it is only an “indirect” victim of a defendant’s crimes. (Torres, supra, at pp. 4-5.) The court in Torres relied on the plain language of section 1202.4, subdivision (k), in light of existing case authorities to determine that the law enforcement agency there that attempted to obtain mandatory victim restitution for money spent for illegal drugs sold by the defendant to its undercover officers was not an intended direct victim of the defendant’s crimes of selling drugs. (Torres, supra, at pp. 4-5.)
Relying on Torres, defendant contends that the CPS is similarly not an intended direct victim of his crimes. He points out that he did not take funds from the CPS and the CPS expended the funds at issue as part of its normal functions. He therefore asserts that, like the situation in Torres, the CPS does not qualify as a direct victim under section 1202.4 for restitution of the funds expended for the direct victim’s foster care.
We agree that under Torres, the CPS is not a “direct” victim of defendant’s crime and cannot as a matter of law receive mandatory victim restitution under section 1202.4 for reimbursement for the amount paid for the direct victim’s foster care. (Torres, supra, 59 Cal.App.4th at pp. 4-5.) Accordingly, the direct restitution ordered paid to the CPS must be stricken as unauthorized.
DISPOSITION
The judgment is modified to strike the restitution order to the CPS for $1,366. As so modified, the judgment is affirmed.
WE CONCUR: Elia, J., Mihara, J.