Opinion
C088147
03-04-2020
THE PEOPLE, Plaintiff and Respondent, v. GEORGE RAMOS RODRIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18FE001447)
Defendant George Ramos Rodriguez appeals from the judgment of conviction on one count of animal cruelty. (Pen. Code, § 597, subd. (a).) On appeal, he claims the trial court's failure to give a unanimity instruction requires reversal. We affirm because the animal cruelty count was based on a continuing course of conduct.
Undesignated statutory references are to the Penal Code.
BACKGROUND
Between January 2016 and January 2018, several people witnessed defendant having an overall abusive relationship with his pit bull Kimbo. Defendant's tenant, who lived in defendant's garage, and defendant's niece, who lived at defendant's house from around January 2016 through September 2017, both believed defendant generally abused Kimbo and treated him horribly. They specifically remembered seeing defendant on numerous occasions aggressively kick, whip, and punch Kimbo using his hands, branches, and cords. They also remembered several times defendant used firecrackers to scare Kimbo.
On January 18, 2018, defendant and the tenant argued after the tenant tried to stop defendant from throwing logs at Kimbo and another dog while defendant was pruning a tree. Two of defendant's neighbors heard this argument, a dog crying as if it were being hit repeatedly, and what they thought was a gunshot, prompting them to call 911. Following this incident, defendant was charged with cruelty to animals (§ 597, subd. (a)) over a period from on or about January 1, 2016 to January 18, 2018, in addition to two other counts not relevant to this appeal.
Defendant said he never abused Kimbo and asserted he did not throw logs at Kimbo during the January 2018 incident. He did throw a firecracker to scare Kimbo after arguing with the tenant, but only to get Kimbo out from behind a shed. Defendant stated he would only use corporal punishment to teach Kimbo defendant was the alpha dog and equated the force and manner of any punishment to spanking his kids. Defendant's wife and son both said they never saw defendant kick, punch, whip, or otherwise abuse Kimbo.
Before trial, defendant requested the court require a unanimity instruction on specific acts of abuse constituting cruelty to animals. The prosecutor argued a unanimity instruction was not required because she was going to present evidence covering a two-year time period constituting a continuous course of conduct amounting to torture of Kimbo. The court reserved judgment on this issue until after the presentation of evidence. In its opening statement, the prosecutor told the jury they would hear about "a course of conduct over time" of defendant's abuse of Kimbo. After the close of evidence, defendant renewed his request for a unanimity instruction that the court denied. The prosecution stated in its closing argument the animal cruelty count "concerns a continuous course of conduct, not just one act, a continuous course of conduct."
The court used CALCRIM No. 2953 jury instruction for the cruelty to animals count. This instruction required the prosecution to specifically prove the "defendant tortured" Kimbo through physical punishment and included the section 599b definition of "torture."
The jury found defendant guilty of cruelty to animals. The court suspended defendant's sentence and placed him on five years of formal probation with the condition he serve 300 days in county jail. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court improperly denied his requests for a unanimity jury instruction as to his cruelty to animals count because the prosecution presented evidence as to several individual acts of abuse. Defendant argues the jury could have voted to find defendant guilty as to separate acts without unanimous agreement as to one act violating section 597, subdivision (a). We will affirm the judgment.
We review claims of instructional error de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.) " '[W]here 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 to make good the allegation of the information' " ' or the jury must be instructed 'that they must agree unanimously on which act they based their guilty verdict.' " (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1427 (Hamlin).)
An exception to the unanimity instruction requirement is when the crime is charged through a continuous course of conduct. "[T]he unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' " (People v. Russo (2001) 25 Cal.4th 1124, 1135.) This is because "it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required." (Ibid.)
The continuous course of conduct exception can arise under two situations: " 'when the acts are so closely connected that they form part of one and the same transaction, and thus one offense' or 'when . . . the statute contemplates a continuous course of conduct [of] a series of acts over a period of time.' " (Hamlin, supra, 170 Cal.App.4th at p. 1427.) If a criminal statute can be violated by both individual acts and a course of conduct, the exception's application depends on whether the prosecution's case was based on individual acts or a course of conduct. (See id. at p. 1451 ["[W]here 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 (Sanchez) [analyzing prosecution's case and evidence to determine necessity of unanimity instruction].)
Section 597, subdivision (a) may be violated through a course of conduct. This provision prohibits torture of an animal and torture can be committed through a course of conduct. (See Hamlin, supra, 170 Cal.App.4th at p. 1429 ["Just as child, spousal, and animal abuse can be committed by a course of conduct rather than a single act, so can torture"]; People v. Jenkins (1994) 29 Cal.App.4th 287, 300 ["Considering the nature of torture and the facts of this case, we find the underlying rationale for the exception supports its application to torture"].) We have also found similar statutory language under section 597, subdivision (b) can be committed through a course of conduct. (See Sanchez, supra, 94 Cal.App.4th at pp. 632-633.)
Defendant was charged with torture of Kimbo under section 597, subdivision (a); so what matters here is whether the prosecution's case for the animal abuse count under subdivision (a) was for a torturous course of conduct or individual torturous acts. Defendant wrongly asserts the prosecution changed its theory of the case from course of conduct to individual acts. The record shows the prosecution's case for this count was always based on a course of conduct amounting to torture—from before trial when defendant first sought a unanimity instruction, at the start of trial in its opening statement, and at the close of trial. The prosecutor was especially explicit in her closing argument when she stated the animal cruelty count "concerns a continuous course of conduct, not just one act, a continuous course of conduct." From this the trial court did not err when it did not require a unanimity instruction for the animal cruelty count.
Defendant incorrectly argues our decision in Sanchez requires a unanimity instruction because there was evidence of individual acts of abuse. In Sanchez we found one animal cruelty count under section 597, subdivision (b) required a unanimity instruction "because the evidence establishe[d] two discrete criminal events of cruelty to dogs." (Sanchez, supra, 94 Cal.App.4th at p. 634.) However, we found other counts of animal cruelty did not require a unanimity instruction even though they included individual acts because they were "based upon evidence establishing that defendant failed to provide adequate food and water for these animals on an ongoing basis during the charged period of time." (Ibid.) This is what happened here—the prosecutor introduced evidence of individual acts to support a charge of ongoing torture.
In Hamlin we rejected a defendant's reliance on Sanchez mirroring defendant's argument here, finding "proof of a course of conduct offense will usually consist of evidence of various incidents occurring over a period of time. However, 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. In such a case, 'the multiple acts constitute one discrete criminal event.' " (Hamlin, supra, 170 Cal.App.4th at p. 1451.) Evidence of defendant's individual abusive acts did not alter the nature of this count from being a course of conduct charge.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Hull, J. /s/_________
Hoch, J.