continuous course of conduct exception in California

2025And she attempts to distinguish People v. Thompson, supra, 160 Cal.App.3d 220 , where our colleagues in Division Three held that the statutory language defining corporal injury on a cohabitant (§ 273.5, subd. (a)) does contemplate a course 6 of conduct over time, and thus falls within the continuous-course-of-conduct exception.

2025For example, no unanimity instruction is required if the case falls within the continuous- course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ (People v. Crandell (1988) 46 Cal.3d 833, 875 ), or ‘when . . . the statute contemplates a continuous course of conduct or a series of acts over a period of time.’ (People v. Thompson (1984) 160 Cal.App.3d 220, 224 .) There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime.

2026For example, no unanimity instruction is required if the case falls within the continuous- course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ [citation], or ‘when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time.’ ” (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).) Additionally, “[t]here also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime.” (Ibid.) 7 We review d

2025“For example, no unanimity instruction is required if the case falls within the continuous- course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ [citation], or ‘when the statute contemplates a continuous course of conduct or a series of acts over a period of time.’ [Citation.] There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime.” (Jennings, supra, 50 Cal.4th at p. 679 .) Here, the evidence showed Young fired the two shots

2026(People v. Latimer (1993) 5 Cal.4th 1203 , 1208–1209.) In contrast, a court is required to give a unanimity instruction if the jury might improperly render a guilty verdict without unanimous agreement on the offense that supports the verdict, subject to the 12 “ ‘This second category of the continuous course of conduct exception has been applied to a limited number of varying crimes, including pimping [citation], pandering [citation], failure to provide for a minor child [citation], contributing to the delinquency of a minor [citation], and child abuse.’ ” (Avina, supra, 14 Cal.App.4th at p. 1

2026(People v. Russo, supra, 25 Cal.4th at p. 1132 .) Here, the evidence shows an especially close temporal connection between the lewd touchings that occurred in Freeman’s car; thus we are concerned with only the first aspect of the continuous course of conduct exception—i.e. when “ ‘the acts are so closely connected that they form part of one and the same transaction, and thus one offense.’ ” (Avina, supra, 14 Cal.App.4th at p. 1309 .) Freeman’s opening brief focuses entirely on what he claims are discrete acts requiring a unanimity instruction.13 Count 4 alleged the commission of a forcible lew

2025(See People v. Gunn (1987) 197 Cal.App.3d 408, 416 [“The continuous conduct aspect of the exception to the general rule applies in this case because . . . section 32 contemplates conduct which can occur either in an instant or over a course of time, and the prosecutor charged and argued the case as a continuous crime rather than as a series of separate, culpable acts”].) The continuous course of conduct exception applies to count 4.

2009“Decisions on the continuous course of conduct exception have focused on the statutory language in an attempt to determine whether the Legislature intended to punish individual acts or entire wrongful courses of conduct.” (People v. Salvato (1991) 234 Cal.App.3d 872, 882 [ 285 Cal.Rptr. 837 ].) “[C]ertain verbs in the English language denote conduct which occurs instantaneously, while other verbs denote conduct which can occur either in an instant or over a period of time.” (People v. Gunn (1987) 197 Cal.App.3d 408, 415 [ 242 Cal.Rptr. 834 ].) In the latter situation, where the statute “may *1

2020(People v. Jennings, supra, 50 Cal.4th at p. 680 .) 30 heart to stop beating, that abuse could only have happened over a brief period of time, given that Clark and Ericka began living together in September 2012 and King stopped breathing on January 3, 2013.19 (See, e.g., People v. Ewing (1977) 72 Cal.App.3d 714, 717 [unanimity instruction not required where physical abuse occurred over period of time].) Thus, where, as here, the evidence is that trauma was inflicted on a child within a relatively short period of time, the continuous course of conduct exception applies.

2013(People v. Ewing (1977) 72 Cal.App.3d 714, 717 (Ewing).) In Ewing the court held that “[a]lthough the child abuse statute [section 273a] may be violated by a single act [citation], more commonly it covers repetitive or continuous conduct.” (Id. at p. 717.) In People v. Thompson (1984) 160 Cal.App.3d 220 (Thompson), the appellate court followed Ewing in holding that spousal abuse is a statutory offense that, like child abuse, because of the ongoing nature of the crime, falls within the second category of the continuous course of conduct exception.

2026Even if the prosecution was proceeding under a continuous course of conduct theory, criminal threats pursuant to “section 422 [do] not come within the continuous course of conduct exception.”2 (People v. Salvato (1991) 234 Cal.App.3d 872, 883 .) 2 Section 422, subdivision (a) provides: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually

2024As the court explained, “[d]ecisions on the continuous course of conduct exception have focused on the statutory language in an attempt to determine whether the Legislature intended to punish individual acts or entire wrongful courses of conduct.” (Salvato, supra, 234 Cal.App.3d at p. 882 .) On that score, Salvato found that the 26 language of section 136.1 “focuses on an unlawful goal or effect, the prevention of testimony, rather than on any particular action taken to produce that end. ‘Prevent’ and ‘dissuade’ denote conduct which can occur over a period of time as well as instantaneously.

2024“In a criminal case, ‘the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] 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.’” (People v. Covarrubias (2016) 1 Cal.5th 838 , 877- 4 878.) This requirement “‘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.’” (People v. Russo (2001) 25 C

2022Regardless, if we accept defendant’s parsing of the event into two discrete crimes, the continuous course of conduct exception nevertheless applies and the failure to instruct on unanimity was not error. “[A] continuous course of conduct exists when the same actor performs the same type of conduct at the same place within a short period of time, such that a jury cannot reasonably distinguish different instances of conduct.” (People v. Hernandez, supra, 217 Cal.App.4th at p. 573 ; accord, People v. Williams (2013) 56 Cal.4th 630, 682 .) Here, “there was no realistic possibility of disagreement”

1993(People v. Davis (1992) 8 Cal.App.4th 28, 41 [ 10 Cal.Rptr.2d 381 ]; People v. Salvato (1991) 234 Cal.App.3d 872, 879 [ 285 Cal.Rptr. 837 ]; People v. Moore (1986) 185 Cal.App.3d 1005, 1014 [ 230 Cal.Rptr. 237 ].) “Neither instruction nor election are required, however, if the case falls within the continuous course of conduct exception.

1993(People v. Davis (1992) 8 Cal.App.4th 28, 41 [ 10 Cal.Rptr.2d 381 ]; People v. Salvato (1991) 234 Cal.App.3d 872, 879 [ 285 Cal.Rptr. 837 ]; People v. Moore (1986) 185 Cal.App.3d 1005, 1014 [ 230 Cal.Rptr. 237 ].) “Neither instruction nor election are required, however, if the case falls within the continuous course of conduct exception.

2025(People v. Hernandez (2013) 217 Cal.App.4th 559, 569 .) Several exceptions to the need to instruct on unanimity exist, including the continuous course of conduct exception.

2025“In a criminal case, a jury verdict must be unanimous. . . . [T]he jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] 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.” (People v. Russo (2001) 25 Cal.4th 1124, 1132 .) Where implicated, the “unanimity instruction must be given sua sponte, even in the absence of a defense request to give the instruction.” (People v. Hernandez (2013) 217 Cal.App.4th 5

2025For example, no unanimity instruction is required if the case falls within the continuous- course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ (People v. Crandell (1988) 46 Cal.3d 833, 875 ), or ‘when . . . the statute contemplates a continuous course of conduct or a series of acts over a period of time.’ (People v. Thompson (1984) 160 Cal.App.3d 220, 224 .) There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime.

2022The continuous-course-of-conduct exception “arises ‘when the acts are so closely connected in time as to form part of one transaction.’” (People v. Jennings, supra, 50 Cal.4th at p. 679 , quoting People v. Crandell (1988) 46 Cal.3d 833, 875 .) The same-defense exception arises when “the defendant offers the same defense or defenses to the various 9 acts constituting the charged crime.” (People v. Jennings, supra, at p. 679 .) Defendant argues that neither of these exceptions applies. “[T]he continuous-course-of-conduct exception applies when (1) ‘the acts are so closely connected in time as to

2024(Cf. People v. Napoles (2002) 104 Cal.App.4th 108, 119 [in child sexual abuse cases, where “testimony is generic in nature, devoid of specific details” of multiple separate unlawful acts, the continuous course of conduct rule applies].) Although Heagney testified to a specific threat Estrada made to him and Ackerman while stopped at the traffic light, and Ackerman told police initially that Estrada threatened her at his apartment, the jury had no reason to differentiate those threats from the larger course of conduct—i.e., that between the comedy show parking lot and his apartment, Estrada con

2021(See People v. Napoles (2002) 104 Cal.App.4th 108 , 115–116 [with the continuous-course-of-conduct exception, “no unanimity instruction is required because the multiple acts constitute a single criminal event”].) F Dunger and Rojas contend we must reverse their convictions due to prosecutorial misconduct during closing and rebuttal argument.

2013(People v. Stankewitz (1990) 51 Cal.3d 72, 100 ; People v. Crandell (1988) 46 Cal.3d 833, 875 ; People v. Diedrich (1982) 31 Cal.3d 263, 282 .) “The continuous course of conduct exception arises in two contexts. [Citations.] ‘The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time. [Citation.]’ [Citation.]” (People v. Jenkins (1994) 29 Cal.App.4th 287, 299 .) The exception applies “when the

2013“As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty.” (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings), citing People v. Diedrich (1982) 31 Cal.3d 263, 281 .) However, “no unanimity instruction is required if the case falls within the continuous-course-of-conduct ex

2024Martinez here conflates “acts” with “crimes.” “Where the evidence suggests that the defendant might have committed more than one crime, the court must instruct the jury that it must agree on which of the acts—and, hence, which of the crimes—the defendant committed. [Citations.]” (People v. Quiroz (2013) 215 Cal.App.4th 65, 73 (Quiroz).) “Where, however, the evidence suggests that a defendant committed only one discrete criminal event—but may have done so in one of several different ways—no unanimity instruction is required. [Citations.] Unanimity is not required in this situation even if the j

2021(See id. at p. 1451 [“where those incidents can reasonably be found to constitute a course of conduct, and the prosecution charges the crime as a course of conduct, no unanimity instruction is required”]; People v. Sanchez (2001) 94 Cal.App.4th 622, 634-637 [analyzing prosecution’s case and evidence to determine necessity of unanimity instruction].) The criminal threats counts were based on the various e-mails defendant sent to the three Liberty Mutual employees, with counts one through three as based respectively on the e-mails sent to Stephen on February 28, March 2, and March 22, and counts

2022(See People v. Arevalo–Iraheta (2011) 193 Cal.App.4th 1574, 1589 [‘the omission of a unanimity instruction [is] harmless if the record reveals “no rational basis . . . by which the jury could have distinguished between [the acts which would constitute the offenses]”’].)” (People v. Lueth (2012) 206 Cal.App.4th 189, 196 .) Defendant asserts that the continuous-course-of-conduct exception does not apply because he fired two shots, the first of which hit James while inside the apartment.

2013(See, e.g., People v. Jennings (2010) 50 Cal.4th 616, 679 .) The exception applies, for example, “when (1) ‘the acts are so closely connected in time as to form part of one transaction,’ (2) ‘the defendant tenders the same defense or defenses to each act,’ and (3) ‘there is no reasonable basis for the jury to distinguish between them. [Citations.]’” (People v. Lueth (2012) 206 Cal.App.4th 189, 196 [Fourth Dist., Div. Two], quoting People v. Crandell (1988) 46 Cal.3d 833, 875 .) This particular branch of the continuous-course-of-conduct exception—we will call it the single transaction branch—“‘

2016As we will explain, Ramirez's argument fails because case law specifically identifies the crime of pimping as falling under the continuous course of conduct exception. 6 The crime of pimping is committed by a person "who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution . . . or who solicits or receives compensation for soliciting for the person." (§ 266h, subd. (a).) As described in the pimping statute, "living or deriving support or maintenance from the earnings of a prostitute or pr

1993The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when ... the statute contemplates a continuous course of conduct of a series of acts over a period of time. [Citation.] “This second category of the continuous course of conduct exception has been applied to a limited number of varying crimes, including pimping (People v. Lewis (1978) 77 Cal.App.3d 455, 461 []), pandering (People v. White (1979) 89 Cal.App.3d 143, 151 []), failure to provide for a minor child (People v. Morrison (1921) 54 Cal.

2022(People v. Stankewitz (1990) 51 Cal.3d 72, 100 ; see also Jennings, at pp. 679-680.) “That is, the failure to instruct is not error ‘unless there is evidence based on which reasonable jurors could disagree as to which act the defendant committed.’ ” (People v. Percelle (2005) 126 Cal.App.4th 164, 181-182 .) 15 2.

2016Quoting from People v. Percelle (2005) 126 Cal.App.4th 164, 181 (Percelle), Velasquez suggests that the continuous course of conduct exception only applies "when '[ "]the defendant offers essentially the same defense to each of the acts, 22 and there is no reasonable basis for the jury to distinguish between them.[" ]' " (Italics added.) However, that is not what Percelle says; Velasquez conflates two independent exceptions to requiring a unanimity instruction.

2026(People v. Russo, supra, 25 Cal.4th at p. 1132 .) Here, the evidence shows an especially close temporal connection between the lewd touchings that occurred in Freeman’s car; thus we are concerned with only the first aspect of the continuous course of conduct exception—i.e. when “ ‘the acts are so closely connected that they form part of one and the same transaction, and thus one offense.’ ” (Avina, supra, 14 Cal.App.4th at p. 1309 .) Freeman’s opening brief focuses entirely on what he claims are discrete acts requiring a unanimity instruction.13 Count 4 alleged the commission of a forcible lew

2026In the first situation, but not the second, it should give the unanimity instruction.” (Russo, supra, 25 Cal.4th at p. 1135 .) “A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses.” (Maury, at p. 422.) California case law has developed an exception for cases involving a “continuous course of conduct.” (People v. Lueth (2012) 206 Cal.App.4th 189, 196 (Lueth).) The “ ‘continuous-course-of-conduct exception’ to the requirement of a unanimity instruction,” however, is really “a catch-all term, which, somewhat confusingly, embraces two wholly

2026For example, no unanimity instruction is required if the case falls within the continuous- course-of-conduct exception,[8] which arises ‘when the acts are so closely 8 In People v. Leuth (2012) 206 Cal.App.4th 189 , the Court of Appeal observed that the “ ‘continuous-course-of-conduct exception’ . . . is a catch-all term, which, somewhat confusingly, embraces two wholly distinct principles,” and that with respect to the “exception” for closely connected acts that form one transaction, “it is not at all clear that this is truly an exception.

2026In the first situation, but not the second, it should give the unanimity instruction.” (Russo, supra, 25 Cal.4th at p. 1135 .) “A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses.” (Maury, at p. 422.) California case law has developed an exception for cases involving a “continuous course of conduct.” (People v. Lueth (2012) 206 Cal.App.4th 189, 196 (Lueth).) The “ ‘continuous-course-of-conduct exception’ to the requirement of a unanimity instruction,” however, is really “a catch-all term, which, somewhat confusingly, embraces two wholly

2025(People v. Sorden (2021) 65 Cal.App.5th 582 , 616 [reviewing de novo whether “trial court erred in failing, sua sponte, to give a unanimity instruction”]; People v. Selivanov (2016) 5 Cal.App.5th 726, 751 [same].) “[N]o unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ [citation], or ‘when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time.’” (People v. Jennings (2010) 50 Cal.4th 616, 679 ; acc

2024“In a criminal case, ‘the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] 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.’” (People v. Covarrubias (2016) 1 Cal.5th 838 , 877- 4 878.) This requirement “‘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.’” (People v. Russo (2001) 25 C

2025(Ibid.; People v. Cissna (2010) 182 Cal.App.4th 1105, 1124 (Cissna).) The Legislature expressly incorporated the continuous-course-of- conduct exception into section 288.5 to address the “vexing proof problems” in cases involving perpetrators “who reside with a minor or have unchecked access to a minor and are charged with repeatedly sexually molesting the minor over a prolonged period of time.” (People v. Gear (1993) 19 Cal.App.4th 10 86, 90 (Gear); see id. at pp. 90–92.) Often in such cases, “child victims are able to offer only ‘generic testimony’; although they are able to describe ‘repeat

2024As a general matter, “[i]n cases ‘where violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged’ the prosecutor is required to elect which act he was relying on to prove the crime charged or the jury must be given a unanimity instruction. [Citation.] By contrast, when the issue presented to the jury is whether a defendant committed a course of conduct and not whether he committed a specific act on a specific day, the prosecutor does not have to elect a specific act and the jury need not unanimously agree on a spe

2014I, § 16; People v. Jones (1990) 51 Cal.3d 294 ; People v. Thompson (1995) 36 Cal.App.4th 843, 850 .) No unanimity instruction was required because the continuous course of conduct exception applies.

1995I, § 16; People v. Mickle (1991) 54 Cal.3d 140, 178 [ 284 Cal.Rptr. 511 , 814 P.2d 290 ]; People v. Jones (1990) 51 Cal.3d 294, 321 [ 270 Cal.Rptr. 611 , 792 P.2d 643 ].) Justice Werdegar has succinctly explained the rule: “When the evidence tends to show a larger number of distinct violations of the charged crime than have been charged and the prosecution has not elected a specific criminal act or event upon which it will rely for each allegation, the court must instruct the jury on the need for unanimous agreement on the distinct criminal act or event supporting each charge. . . . “ ‘Neither

2025(People v. Carrera (1989) 49 Cal.3d 291 , 311–312.)” (People v. Jennings (2010) 50 Cal.4th 616, 679 .) Cox’s opening brief focuses entirely on the question of whether the statutes at issue contemplate a continuous course of conduct.

2021(People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8 (Carrera).) “Even absent a request, the court should give the instruction ‘where the circumstances of the case so dictate.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1199 .) Appellate courts review de novo whether the trial court erred in failing to give a unanimity instruction.

2016In the first situation, but not the second, it should give the unanimity instruction." (Russo, supra, 25 Cal.4th at p. 1135 .) "A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses." (Maury, at p. 422.) As relevant here, " 'a unanimity instruction is not required when the case falls within the continuous course of conduct exception.' " (People v. Jenkins (1994) 29 Cal.App.4th 287, 298-299 .) "The continuous course of conduct exception arises in two contexts. [Citation.] ' "The first is when the acts are so closely connected that they form

2015First, if the prosecution shows several acts and each act is a separate offense, a unanimity instruction is required.’ [Citation.] ‘The second established principle is that a unanimity instruction is not 18 required when the case falls within the continuous course of conduct exception.’ [Citation.] ‘Analogous to the single course of conduct exception is the third established principle, that the failure to give CALJIC No. 17.01 is harmless when disagreement by the jury is not reasonably probable. [Citation.]’ [Citation.] ‘The fourth principle applicable to the question whether unanimity instruc

2025(People v. Sorden (2021) 65 Cal.App.5th 582 , 616 [reviewing de novo whether “trial court erred in failing, sua sponte, to give a unanimity instruction”]; People v. Selivanov (2016) 5 Cal.App.5th 726, 751 [same].) “[N]o unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ [citation], or ‘when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time.’” (People v. Jennings (2010) 50 Cal.4th 616, 679 ; acc

2022To the contrary, the basis for defendant’s criminal liability in this case was his failure to act.10 Accordingly, we reject defendant’s claim that the trial court erred in refusing to instruct the jury on unanimity, in violation of his state and federal rights.11 In light of this conclusion, it is unnecessary to address the parties’ disagreement over whether the continuous course of conduct exception to the prosecutorial-election-or unanimity- instruction requirement applies to these facts (People v. Jo, supra, 15 Cal.App.5th at p. 1178 ; People v. Hernandez, supra, 217 Cal.App.4th at p. 572 )