Opinion
A150961
08-06-2018
THE PEOPLE, Plaintiff and Respondent, v. SHELLIE FARNHAM, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-161519-4)
A jury convicted Shellie Farnham of involuntary manslaughter and dependent adult abuse likely to produce death, and found true the allegation Farnham proximately caused the victim's death. The trial court sentenced Farnham to prison.
Farnham appeals. She argues the court prejudicially erred by failing to issue a unanimity instruction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2015, Rodney Moss was hit and killed by a car. A grand jury indicted Farnham on charges of involuntary manslaughter (Pen. Code, § 192, subd. (b)) and elder or dependent adult abuse resulting in death (§ 368, subd. (b)(1)). The indictment alleged Farnham proximately caused Moss's death.
Statutory references are to the Penal Code. --------
Trial Evidence
In 2014, Moss and Farnham were dating. They used methamphetamine and argued frequently. In late 2014, Moss—then 43 years old—was in a scooter accident and suffered a traumatic brain injury. Moss was in a coma; thereafter, he had to re-learn basic life skills. After the accident, Moss lived in a residential care facility. By early September 2015, Moss's condition had improved and he was staying at his mother's house several nights a week. Moss, however, could not prepare his own meals or dress himself properly, and could not be in public unsupervised. He could not cross the street by himself because he "wouldn't look" before crossing. Moss often forgot where he was.
In September 2015, Farnham picked Moss up from the residential care facility. Farnham knew she was not allowed to leave Moss alone; she also knew he could not cross the street by himself. The facility administrator was told Farnham and Moss were going to dinner and a movie. Instead, Farnham took Moss to a motel room. They watched television and talked. Moss went outside by himself and smoked a cigarette. He returned to the room a few minutes later and had sex with Farnham. At 10:00 p.m., Moss went outside to smoke another cigarette. He "never came back." At 11:27 p.m., Moss was hit by a car 2.7 miles from the motel. Before he was hit, motorists saw Moss walking along the roadway, looking "lost." Two cars swerved to avoid him; a third car did not have time to swerve. The car hit Moss. He died about 30 minutes later. He had methamphetamine in his system.
Farnham claimed she began looking for Moss about 10 minutes after he left the motel room the second time. She went outside the room and called Moss's name. Then Farnham walked in the parking lot and along the sidewalk, to see if she could "see [Moss] walking." When Farnham did not see Moss, she returned to the motel room and waited; she did not think he had wandered off. Eventually, Farnham drove up and down the street in front of the motel. Then she returned to the motel room. Farnham did not ask the motel clerk for help; she did not call the police or the residential care facility. At 1:12 a.m., Farnham learned Moss had been hit by a car and killed. Later that morning, Farnham spoke to Moss's brother. Farnham said she looked for Moss after he went outside for the second cigarette, but that she stopped her search because she had to leave the motel to pick up her daughter. Farnham told another person a similar story about needing to leave the motel to help her daughter.
At trial, Farnham admitted the story about her daughter was a lie. She testified, however, that she thought Moss was capable of smoking a cigarette without supervision because she had seen him smoke a cigarette once before, and because Moss seemed self-sufficient. Farnham denied using drugs with Moss on the day of the accident. After learning Moss had been hit by a car, Farnham thought the only explanation for his behavior was that he had used drugs.
Closing Argument and Jury Instructions
Farnham requested a unanimity instruction (CALCRIM No. 3500). The prosecutor objected, explaining: "I don't have to have all 12 jurors say it was because she lied about where they're going or she failed to summon help or she let him smoke a cigarette . . . ." The court declined to give the instruction. Relying on People v. Rae (2002) 103 Cal.App.4th 116 (Rae), the court concluded the evidence "reflects a continuing course of conduct or . . . a series of events that are so closely connected that they form a single transaction; that is, [Farnham] taking . . . Moss out of the care . . . facility for the evening."
During closing argument, the prosecutor urged the jury to find Farnham guilty based on the totality of her actions. Referring to the "methamphetamine evidence," the prosecutor stated it was "one factor among all of the circumstances for you to consider when you are deciding that [Farnham] placed . . . Moss in danger." Later, the prosecutor argued there was no dispute Moss "was a dependent and needed supervision" and urged the jury to "look at the totality of the circumstances of what [Farnham] did in this case. [¶] She's started off by lying to obtain custody. . . . She said dinner and a movie. . . . [¶] She took him to a dangerous motel. . . . Railroad Avenue is extremely busy. [¶] Then she let him go into the parking lot to smoke. She furnished or permitted him to smoke methamphetamine, or she didn't take him home when she knew he was acting oddly or under the influence of drugs. [¶] She failed to supervise him. . . . [W]hen he disappeared she failed to use reasonable efforts to locate [him]. [¶] She ha[d] an affirmative duty to do so. She had a legal duty."
Verdict and Sentence
The jury convicted Farnham of involuntary manslaughter (§ 192, subd. (b)) and elder or dependent adult abuse resulting in death (§ 368, subd. (b)(1)), and found true the allegation Farnham proximately caused Moss's death. The court sentenced Farnham to eight years in prison.
DISCUSSION
Farnham claims the court was required to deliver a unanimity instruction because there "two distinct acts upon which the . . . convictions could have rested." " '[A]ssertions of instructional error are reviewed de novo.' " (People v. Hernandez (2013) 217 Cal.App.4th 559, 568.) "A unanimous jury verdict is required in criminal cases. [Citations.] . . . [A] unanimity instruction must be given where the evidence shows that more than one criminal act was committed which could constitute the charged offense, and the prosecution does not rely on any single act." (People v. Sanchez (2001) 94 Cal.App.4th 622, 631 (Sanchez).) "There are, however, several exceptions to this rule." (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).) "The unanimity instruction is not required where the criminal acts are so closely connected that they form a single transaction or where the offense itself consists of a continuous course of conduct." (Rae, supra, 102 Cal.App.4th at p. 122, italics added.) "This is because in both cases, the multiple acts constitute one discrete criminal event." (Sanchez at p. 631.)
Here, the court refused to give the unanimity instruction, concluding Farnham's actions constituted a continuous course of conduct. "We agree, and hold there was no error." (Rae, supra, 102 Cal.App.4th at p. 122.) Farnham engaged in a series of neglectful actions over a relatively short time period which led to Moss's death: she failed to supervise Moss when he left the motel room a second time, she gave him methamphetamine or permitted him to smoke methamphetamine, and she failed to take reasonable steps to find him when she discovered he was missing. A continuing course of conduct has been held to exist where—as here—the "wrongful acts were successive, compounding, and interrelated." (Id. p. 123.)
The court did not err by declining to give a unanimity instruction. (Rae, supra, 102 Cal.App.4th at p. 124 [multiple failures to care for elder over a two-day period constituted a continuous course of conduct]; Jennings, supra, 50 Cal.4th at p. 680 [unanimity instruction not required where "prosecutor proceeded on a 'course of conduct' theory, arguing that the cumulative effect of the torture . . . was a concurrent cause of death"].)
DISPOSITION
The judgment is affirmed.
/s/_________
JONES, P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.