Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF096220, Gregg L. Prickett, Judge. (Judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Teresa Torreblanca and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
All statutory references are to the Penal Code unless otherwise identified.
Defendant seriously injured his three-year-old daughter. A jury convicted defendant of child abuse, including a finding that defendant had personally inflicted great bodily injury on a child under five years of age. (§§ 273a, subd. (a); 1192.7, subd. (c); and 12022.7, subd. (d).) The court found defendant had suffered a prior serious felony conviction and had not remained free of prison custody for five years. (§§ 667, subds. (a), (b), & (e); 667.5, subd. (b); and 1170.12, subd. (c).) The court sentenced defendant to a total prison term of 19 years.
On appeal, defendant makes two arguments. First, he challenges the trial court’s failure to require the prosecutor to make an election of the act that constituted felony child abuse. Defendant also contends the trial court erred by not defining “likely” as used in section 273a: “(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.” [Emphasis added.]
We reject defendant’s claims of error and affirm the judgment.
2. Facts
F.Z. was born in 1997. Defendant and F.Z.’s mother, Christine O., were never married and they did not live together. In 1999, Christine moved to Las Vegas. Defendant paid child support and had visits with F.Z. in Riverside and Las Vegas.
On a trip to Riverside in February 2001, Christine left F.Z. overnight with defendant. The next day, Christine bathed F.Z. and noticed an injury to her shoulder blade, some scratches on her leg, and a bruise to her stomach. Christine photographed the injuries.
On another trip to Riverside, Christine and F.Z. spent two nights, Wednesday and Thursday, with defendant. Friday night they stayed with Christine’s sister, Nannette. While having a bath, F.Z. hit the bridge of her nose on the bathtub faucet causing a small bruise.
On Saturday evening, February 24, 2001, Christine left F.Z. with defendant even though she was crying and did not want to stay. Later defendant called and said F.Z. had been hurt while playing with his other daughter, her half-sister, Alexis. Defendant said F.Z. had bumped her head and fainted or pretended to faint or had a tantrum. In a separate phone call with Nannette, defendant described F.Z. as fainting and running a fever. Nannette could hear the child screaming and crying in the background. When Christine spoke on the telephone to F.Z., the child said she was okay and laughed.
Defendant asked to have the two girls spend the night with him. Christine brought over some clothes to defendant’s mother’s house for F.Z. Defendant said F.Z. was watching television and Christine left to go to the movies. Christine spent Saturday night at Nannette’s house.
On Sunday morning, she called defendant who reported F.Z. had two black eyes and had been vomiting. He had given her some medicine. Christine said she would come over after going to Target. She called from Target and said she was going to another store.
When Christine finally arrived, defendant was watching television and F.Z. was on his lap. F.Z.’s head was misshapen and swollen. At the emergency room, Christine saw F.Z. was injured and bruised on her neck, back, and nipples. Defendant attributed her injuries to “bump[ing] heads” and falling near the floor heater. F.Z. was hospitalized for five days. The bruising and swelling lasted several weeks.
Christine obtained a temporary restraining order against defendant. They had another conversation in which defendant said again the girls had bumped heads, F.Z. had fainted, and he had pinched her nipples to bring her back to consciousness.
A forensic pediatrician, Dr. Rebeca Piantini, testified that, when she examined F.Z., she observed extensive bruising on her head, face, eyes, ears, jaw line, neck, arms, legs, back, nipples, and buttocks. Some of the injuries appeared more recent than others because of different coloration.
F.Z. had also suffered retinal hemorrhaging. A CT scan showed that F.Z. had subdural bleeding behind both eyes, usually caused by abusive head trauma and swelling of the brain. Piantini believed that F.Z. was a battered child and her injuries were inflicted rather than accidental.
Defendant did not testify at trial. Previously, he had told the police that Alexis and F.Z. had been running around when F.Z. fell on the furnace.
3. Election
The prosecution charged defendant with a single count of child abuse under section 273a, subdivision (a). This section defines four types of child abuse. (People v. Sargent (1999) 19 Cal.4th 1206, 1215 (Sargent).) The prosecution argued defendant could be guilty either because he physically inflicted injury on F.Z. when she spent the night with him or because he did not obtain timely medical care for her.
The court instructed the jury with two instructions, CALCRIM Nos. 821a and 821b, defining child abuse as either (1) willfully inflicting unjustifiable physical pain or (2) causing or permitting a child to be endangered. Finally, the court also gave a unanimity instruction based on CALCRIM No. 3500: “The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts for the offense and you all agree on which act he committed.” (Emphasis added.)
In other words the jury was told there were two types of acts constituting abuse and they had to agree on one act to support the single criminal conviction. On appeal, defendant contends the court erred by not requiring the prosecution to make an election as to which act constituted the abuse.
When a defendant is charged with a single criminal offense, but the evidence shows more than one act which could constitute that offense, the prosecutor must either make an election of the specific act relied upon or, as it did in this instance, the trial court must instruct the jury to agree unanimously that the defendant committed the same specific act. (People v. Brown (1996) 42 Cal.App.4th 1493, 1499-1500; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) We presume the jury followed its instructions. (People v. Thornton (2007) 41 Cal.4th 391, 441.) Because a unanimity instruction was given, no election was required. Furthermore, because the jury was clearly instructed there were two types of acts, and it had to agree on one act for the single conviction, we are not convinced by defendant’s effort to argue the jury may have been confused by its instructions.
Additionally, because defendant was alleged to have committed a single crime and because the crime of felony child endangerment constitutes a continuous course of conduct, neither a unanimity instruction nor an election was required. In the present case, the abuse and the delayed treatment comprise a single course of conduct. As explained in People v. Napoles (2002) 104 Cal.App.4th 108, 116: “‘[w]here . . . 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 . . . that jury unanimity is not required as to the underlying conduct constituting the violation of section 273a.’ [Citation.].” (People v. Diedrich (1982) 31 Cal.3d 263, 282; People v. Felton (2004) 122 Cal.App.4th 260, 270; People v. Ewing (1977) 72 Cal.App.3d 714, 717.)
Application of these principles to the facts here demonstrates that no election or unanimity instruction was required. The information accused defendant of violating section 273a, subdivision (a), on February 24 and 25, 2001. This broad language alerted the jury that the charge consisted of a continuous-course-of-conduct crime. In addition, the evidence presented was that F.Z. sustained her injuries overnight while in defendant’s care and he failed to seek prompt medical care for her. The evidence demonstrates defendant engaged in a continuous course of conduct of child abuse. No prosecutorial election was required.
In the alternative, the People maintain any error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24. People v. Salvato (1991) 234 Cal.App.3d 872, 882, explains: “First, election is only required on demand. Second, an election cannot be required where none is possible, as where the evidence is completely generic, or where the various acts do not constitute distinct potential crimes but rather one continuous course of criminal conduct. Finally, refusal will only be prejudicial if an election would have made some significant difference in the trial, whether through the exclusion of evidence, allowing a focused defense, or in some other respect that materially implicates the right to be advised of the charges.”
At the preliminary hearing, defendant was given adequate notice of the supporting evidence. His sole—and implausible—defense was that F.Z. badly injured herself by accident and that he did not understand how serious her injuries were. The forensic pediatrician testified F.Z. had been intentionally battered not injured accidentally. Obviously, the prosecution’s evidence persuaded the jury and an election would not have effected a significant difference in the trial, making any error harmless beyond a reasonable doubt.
4. The Meaning of “Likely”
The form instructions to the jury defining child abuse, CALCRIM Nos. 821a and 821b, under section 273a, subdivision (a), employ the phrase from the statute, “likely to produce great bodily harm.” Defendant asserts the court erred by not giving the jury sua sponte an instruction on the special meaning of “likely” as the word is defined in People v. Wilson (2006) 138 Cal.App.4th 1197, 1204: “‘[L]ikely’ as used in section 273a means a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death. We believe in the context of child endangerment this definition of the term ‘likely’ draws a fair balance between the broad protection the Legislature intended for vulnerable children and the level of seriousness required for a felony conviction.”
The People argue that Wilson was wrongly decided and there is no sua sponte duty to give a definitional instruction. We agree with respondent on both points.
The rules governing the trial court’s sua sponte duty to instruct the jury are well established. In the absence of a request, the trial court has a general duty to instruct the jury sua sponte, including amplifying or clarifying instructions where the term used in an instruction has a “‘particular and restricted meaning’ [citation], or has a technical meaning peculiar to the law or an area of law [citation].” (People v. Roberge (2003) 29 Cal.4th 979, 988; People v. Abilez (2007) 41 Cal.4th 472, 517.) A word has a technical, legal meaning when it has a definition that differs from its nonlegal meaning. (People v. Estrada (1995) 11 Cal.4th 568, 574.) The trial court has no duty to give a clarifying instruction, absent a request, if the term in the instruction has a plain and unambiguous meaning that is “‘commonly understood by those familiar with the English language . . . .’” (People v. Kimbrel (1981) 120 Cal.App.3d 869, 872.)
The word “likely” does not have a technical meaning particular to section 273a. Section 273a provides that “[a]ny person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years. [Emphasis added.]” The element or requirement that the abuse be committed “under circumstances or conditions likely to produce great bodily harm or death” applies to all four types of child abuse (§ 273a; Sargent, supra, 19 Cal.4th at p. 1216) and the determination of this element is a question for the jury based upon all the evidence. (Id. at p. 1221.)
Although the meaning of the word “likely” is flexible (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 916-917 (Ghilotti)), both the legal sources and nonlegal sources, like dictionaries and thesauruses, define the word in terms of probability. (Ibid.) Consistent with these definitions, case law has long recognized that the phrase “likely to produce great bodily harm or death” in section 273a means “‘the probability of serious injury is great.’” (Sargent, supra, 19 Cal.4th p. 1223.) Because the legal and plain meanings of “likely” in section 273a are the same, we conclude there is no sua sponte duty to further define it.
The court in People v. Wilson, supra, 138 Cal.App.4th 1197, citing Ghilotti, supra, 27 Cal.4th 888, held that the proper definition is “a substantial danger, i.e. a serious and well founded risk, of great bodily harm or death.” (Wilson, supra, at p. 1204.) The Wilson court believed this definition applied equally to section 273a because in its view it “draws a fair balance between the broad protection the Legislature intended for vulnerable children and the level of seriousness required for a felony conviction.” (Ibid.)
We are not persuaded by Wilson because it mistakenly relied on Ghilotti. Ghilotti, supra, 27 Cal.4th 888, arose in the context of the Sexually Violent Predator Act, which authorizes the civil commitment of violent sex offenders following completion of their prison term. (Welf. & Inst. Code, § 6600 et seq.) The Supreme Court construed the meaning of the word “likely” in subdivision (d) of section 6601 of the Welfare and Institutions Code, requiring two mental health professionals to evaluate the candidate for involuntary civil commitment by determining whether “the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody.” The defendant argued “likely” meant “highly likely” or at least “more likely than not.” The People argued it meant “‘a significant chance, not minimal; something less than “more likely than not” and more than merely “possible.”’” The Supreme Court concluded that neither party was entirely correct. (Id. at p. 916.)
Recognizing the word “likely” may be used to express a range “from possible to probable,” (Ghilotti, supra, 27 Cal.4th at p. 916) the court concluded the proper definition under Welfare and Institutions Code section 6601 was the narrower definition of “a substantial danger, that is, a serious and well-founded risk . . . .” (Ghilotti, supra, at p. 922.) The court arrived at this definition for two reasons. First, the word must be given a meaning consistent with the purpose of the SVPA. That purpose is to protect the public from the limited group of persons who currently suffer from a mental disorder that impairs their ability to control their violent sexual impulses such that they “do in fact present a high risk of reoffense if they are not treated in a confined setting.” (Id. at p. 921.) Second, the word must be construed “in light of the ‘difficulties inherent in predicting human behavior.’” (Ibid.; see also People v. Roberge, supra, 29 Cal.4th at pp. 988-989 [affirming that Ghilotti’s definition of “likely” was tailored to the purposes of the SVPA because the word has a particular and technical meaning under the SVPA].)
The considerations pertinent to the SVPA are not raised by section 273a. While both the SVPA and section 273a serve to protect others from abuse, the SVPA operates by providing procedures for the involuntary civil commitment of sexually violent predators who in fact pose a high risk of reoffense in the future, while section 273a protects children from existing abusive situations by punishing offenders upon conviction of the offense. Secondly, the word “likely” in section 273a does not serve as a measure for making the difficult and imprecise task of predicting future human behavior. Rather, it is merely a measure for determining the risk of present injury created by external and tangible circumstances or conditions. (Sargent, supra, 19 Cal.4th at p. 1223.)
For these reasons, we hold that the word “likely” should be given its plain and common sense meaning that “‘the probability of serious injury is great.’” (Sargent, supra, 19 Cal.4th p. 1223.) Furthermore, while judges and attorneys may discern the difference between “the probability of serious injury is great” and “a serious and well founded risk,” we doubt any juror would fully appreciate the difference so as to affect the verdict in the context of child abuse. As a result, the trial court had no duty to give a special instruction defining the word and committed no instructional error.
5. Disposition
We affirm the judgment.
We concur: Ramirez P. J. Hollenhorst J.