Filed 6/13/16 P. v. Jaramillo CA3
                                           NOT TO BE PUBLISHED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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



THE PEOPLE,                                                                                  C077735

                   Plaintiff and Respondent,                                   (Super. Ct. No. CRF 14-2969)

         v.

FRANCISCO PANCHO JARAMILLO,

                   Defendant and Appellant.




         A jury convicted defendant Francisco Pancho Jaramillo of infliction of corporal
injury on a former cohabitant (Pen. Code, § 273.5, subd. (a); undesignated section
references are to this code; count 1) and, in connection with the offense, found defendant
inflicted great bodily injury (§ 12022.7, subd. (e)). In bifurcated proceedings, the court
sustained a prior prison term allegation (§ 667.5, subd. (b)).
         The court sentenced defendant to state prison.




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      Defendant appeals, contending the trial court prejudicially erred in failing to
instruct the jury on unanimity. He argues the prosecution presented multiple acts to
prove a single count of infliction of corporal injury on a former cohabitant. He concedes
the enhancement for great bodily injury was based on the finding he broke the victim’s
rib by slamming her into a wall.
      The People claim an unanimity instruction was not required because the evidence
described a continuous course of conduct and the prosecutor elected the act which formed
the basis for the corporal injury charge and enhancement. Moreover, the People claim
any instructional error was harmless beyond a reasonable doubt.
      We conclude the trial court did not have a duty to provide a unanimity instruction.
      The information charged defendant with one count of corporal injury which
occurred “[o]n or about June 23, 2014,” and that during the commission of the offense,
defendant personally inflicted great bodily injury under circumstances involving
domestic violence.
      We recount the evidence adduced at trial. About 7:00 p.m. on June 22, 2014,
Felicia L. and defendant, who had been dating for almost two years, were walking
towards her home when they heard a girl yell out defendant’s name. Defendant tried to
let go of Felicia’s hand and she asked what was going on. When they arrived at Felicia’s
home, defendant “just snapped,” yelling at her and calling her names. She tried to enter
her home but defendant grabbed her so tightly he left finger-shaped bruises on her arms.
He shoved her into the corner of the garage and her side hit the corner. He used his body
to “body slam” and pin her against the wall. When she screamed and told him to get
away, he stopped and walked away “like nothing happened.” Later that night, they slept
together at an abandoned hospital across the street from her home. He was homeless and
that was where he normally slept at night.
      The next day, they had a picnic at the park. She felt a sharp pain in her side that
had hit the corner of the garage the night before. The pain worsened during the day and

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when defendant touched her side, she felt like she was about to pass out. When they left
the park, they walked passed a woman who Felicia described out loud as a “whore.”
Defendant backhanded Felicia. When they arrived at Felicia’s home, defendant pushed
her against the gate and slapped her repeatedly in the mouth. Defendant stopped when
Felicia’s uncle walked up to the house. Felicia asked her uncle to take her to the hospital.
The pain in her side had worsened to the point it was difficult to breathe. At the hospital,
an X-ray revealed she had a fractured rib. She also had scratches and bruising on her face
and arms, facial swelling, and a knot on her head. At trial, Felicia testified defendant
tried to discourage her from testifying against him.
       A man Felicia referred to as her uncle, who was actually the longtime companion
of her mother, was called to testify by the defense. He said Felicia had been staying at
his house for approximately two years. When she asked for a ride to the hospital, she
told him defendant had “poked” her and her ribs were hurting. The “uncle” could see she
was crying. He took her to the emergency room. He testified Felicia often drank alcohol
throughout the day.
       The officer who interviewed Felicia at the hospital testified Felicia claimed
defendant had “body slammed” her against the corner of the wall and punched her with a
closed fist in the face and arms on June 23, and he had thrown her against a wall and
slapped her on June 22. The officer testified Felicia claimed the body slam on the 23
prompted the hospital visit on the 23. The officer also testified Felicia claimed both
incidents occurred inside the house. The officer saw no signs in Felicia of recent alcohol,
marijuana, or methamphetamine use. Felicia did not call the officer and did not want to
make a report, fearing defendant would find out.
       The trial court instructed the jury the prosecution did not have to prove the exact
date on which the crime occurred. In closing argument, the prosecutor relied on
defendant’s continuous course of conduct over the two-day period to prove the charge.
The prosecution relied on the victim’s broken rib as constituting the great bodily injury.

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The jury convicted defendant of the charge and found the great bodily injury
enhancement to be true.
       “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. [Citation.] There are, however, several exceptions to this rule.
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 of 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. [Citation.]” (People v.
Jennings (2010) 50 Cal.4th 616, 679.)
       People v. Thompson (1984) 160 Cal.App.3d 220 concluded a violation of section
273.5 involved a continuous course of conduct over time in that each act might not be a
crime but the “cumulative outcome” amounted to the crime. (Id. at p. 225; People v.
Jennings, supra, 50 Cal.4th at p. 679.)
       In his reply brief, defendant argues that Thompson is distinguishable because the
victim in that case sustained numerous sexual and physical assaults over a period of
weeks, whereas here, the victim “alleged two discrete acts which occurred on two
separate days.” We reject defendant’s argument. As Thompson stated, a violation of
section 273.5 “contemplates a continuous course of conduct of a series of acts over a
period of time.” (People v. Thompson, supra, 160 Cal.App.3d at p. 224.) Defendant
cites no authority which supports his argument that a period of two days cannot constitute
a period of time for the continuous-course-of-conduct exception to apply.



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       We agree with and will follow Thompson. The beatings of the victim over a two-
day period were charged as a single crime. The prosecutor argued defendant’s
continuous course of conduct over the two-day period constituted the crime. Thus, a
unanimity instruction was not required.1
       Defendant misplaces his reliance upon People v. Diedrich (1982) 31 Cal.3d 263, a
case involving separate acts of bribery, an offense which, in itself, does not consist of a
continuous course of conduct. (Id. at p. 282.)
                                      DISPOSITION
       The judgment is affirmed.


                                                         NICHOLSON             , Acting P. J.


We concur:



      MAURO                 , J.




      MURRAY                , J.




1      The jury found beyond a reasonable doubt that the victim sustained the broken rib
in one beating or the other by defendant. The jury rejected the defense’s attack on the
victim’s credibility and the defense suggestion the victim’s broken rib was a preexisting
injury or the victim fell and injured herself. Moreover, the jury heard evidence that
defendant attempted to dissuade the victim from testifying against him, showing a
consciousness of guilt.

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