People v. RaePeople v. Rae
*118 Opinion
Defendant Nicholas Hayes Rae appeals his conviction of one count of elder abuse. (
We further hold that the trial court did not err in failing to instruct sua sponte on the defense of consent because consent is not available to a defendant charged with abuse.
We affirm the judgment.
Factual and Procedural Background
Helen Johnson was an 86-year-old widow living alone in her home in Calistoga when she met defendant Nicholas Rae in approximately 1996. The only information about their early relationship comes from the transcript of a police interview with defendant after Johnson’s death, in which he stated that he met Johnson when he did some work on her sprinkler system, and he moved into her home soon after they met. Until June of 2000, Johnson was able to walk around the house and yard. However, she could not see well, and shortly after defendant moved in he began to take care of writing checks and paying household bills. Defendant invited a friend, Joe Jessie Ramirez, to the house a few times a week to help with jobs around the house and with cooking and cleaning. Defendant paid Ramirez with Johnson’s money. Ramirez had a prior felony conviction.
In mid-June of 2000, Johnson suffered from sciatic pain, possibly from a fall, and an impacted bowel. Over the course of what a physician stated was “a long period of time,” defendant left her in a chair in her bedroom.
On June 25, 2000, Johnson tried to get out of the chair, and defendant noticed that she had developed sores on her back. He called 911. The responding police officer noted that the bedroom was dirty with a strong odor of urine, and there were flies in the house. Soiled linens were on the floor in the bedroom, and open containers of beer and soda were on the countertops, dresser, and nightstand. Johnson was taken to the St. Helena Hospital emergency room.
*119 The nurse who attended her testified that Johnson’s back and upper thighs and the back of her nightgown were covered in dried feces. When the nurse peeled the nightgown away a layer of skin came with it in some areas. Johnson had pressure sores, 1 and one sore in her perianal area had live maggots in it. The nurse testified that Johnson appeared emaciated and that her condition was one of the worst the nurse had ever seen.
Johnson stayed in the hospital overnight and on the following day, June 26, she was seen by the doctor. He noted that she was very thin and dehydrated. Johnson was discharged from the hospital that same day. On June 27, a home health care nurse from Adventist Home Health Care found Johnson in her bed at home, wearing a diaper that was wet with urine. The mattress and the dressing over the pressure sore in Johnson’s coccyx area were also soaked with urine.
The home health care nurse asked defendant to get Johnson some diapers or Depends pads as soon as possible, and she rejected defendant’s idea that he could use paper towels between Johnson’s legs to keep her dry. She told defendant that she would order a hospital bed with an alternating pressure mattress, as Johnson’s bed made providing care difficult and the hospital bed would help relieve pressure and help the sores to heal.
The nurse showed defendant how to change the sheets and how to move Johnson back and forth to keep the pressure off her sores; she stressed the importance of keeping a dry, clean dressing on the sore in the coccyx area. She also explained that getting Johnson out of bed was good for her circulation and would take weight off the pressure sores, and that feeding Johnson was important for wound healing and she should get three meals a day, plus snacks.
On June 28, a home health aide and a social worker from Adventist visited Johnson. Again, Johnson was soaked with urine, as was her bed, and there was nothing underneath her or in between her legs to absorb the urine. She had not been moved to the hospital bed. Defendant admitted that he was overwhelmed. The social worker believed that Johnson needed a nursing home and started trying to make arrangements for her to be placed.
During the social worker’s visit, defendant had difficulty staying on the topic or working at problem solving. He told her that his father was one of *120 the heads of the CIA and had had part of his brain taken out by the government because he had argued with President Kennedy over the Cuban missile crisis. This apparently delusional thinking gave the social worker cause for concern about whether defendant had the long-term ability to be Johnson’s caregiver, and she made arrangements for another caregiver to stay the night. She planned to return herself the next morning to take Johnson to a nursing home—a plan to which she believed defendant had agreed by the time she left.
Another nurse visited in the afternoon and found conditions much the same. Johnson’s bed was again wet with urine and she had paper towels between her legs. The nurse again advised defendant how to feed and care for Johnson.
A home health aide came to the house that evening with instructions to stay the night and care for Johnson. She stayed only a few minutes, because she became frightened when defendant yelled at her. Johnson was wet and smelled of urine, and Johnson told the aide that she really needed help, and that she was hungry and had not yet had lunch or dinner, although it was 5:30 p.m. There was no food in the refrigerator.
The following day, June 29, the social worker and the home health care nurse went together to the house to speak to Johnson about placement in a skilled nursing facility. Everything was set up for her admission; all she needed to do was agree. They found Johnson still in her own bed in the bedroom, not in the hospital bed, with paper towels between her legs. Defendant had removed the bandage on the wound on her coccyx, saying that the wound needed open air, and he insisted that the nurse was wrong in saying that the wound needed a bandage.
The social worker and the nurse discussed the skilled nursing facility with Johnson, who at first said “no, no, no,” but then began to listen when they told her that she would receive physical therapy and it would help her to become strong enough to walk again. When it seemed that Johnson was considering going, defendant ran into the room from his room, where he had been listening, and yelled at Johnson not to go, at which point she said, “I guess I can’t go then.” Defendant became extremely agitated and angry, and eventually the social worker and the nurse left, believing it was unsafe for them to stay.
Over the next few days adult protective services (APS) workers attempted to find in-home caregivers to assist with Johnson’s care, and to persuade her to go to a nursing home. At first, defendant was cooperative with the attempt *121 to find other caregivers, but then he became angry and agitated, refused any more help, cursed at the APS workers, and left hostile voicemail messages for them. He did not move Johnson to the hospital bed and insisted her sores were healing and that he did not need help. He refused to allow APS workers to talk to Johnson unless he was listening in on the call.
Defendant called police on the evening of July 6 to say that Johnson had died. The cause of death was bilateral pulmonary emboli, which may be caused by inactivity. When police arrived a cloth was wrapped around her lower body and a towel was inserted into her vaginal area. The bed was soaked with urine and there was feces on the towel. In the bedroom, there was feces on the floor, a full package of Depends, rolls of paper towels, and a bag full of garbage. The bathroom and washer/dryer area were filthy.
Defendant was arrested on charges of violation of Penal Code
The trial court suspended imposition of sentence, placed defendant on five years’ formal probation, imposed a restitution fine of $800, and as a term of probation ordered defendant to serve 365 days in Napa County Jail.
Discussion *
*122 I., II. *
III. The Trial Court Did Not Err in Refusing to Give CALJIC No. 17.01 Regarding Unanimity
Defendant argues that the trial court committed prejudicial error when it refused to instruct the jury on unanimity pursuant to CALJIC No. 17.01. 6 The court refused defendant’s request to give the instruction, stating “there may be multiple legal elements contained in the particular charges in question, but there could be a continuing course of conduct on the evidence. So I don’t think 17.01 is appropriate.” We agree, and hold there was no error.
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. (See
People v. Diedrich
(1982)
Because the language of Penal Code
In
People
v.
Ewing
(1977)
Our conclusion that Penal Code
A continuing course of conduct has been held to exist where the wrongful acts were successive, compounding, and interrelated.
(Sanchez, supra,
Defendant argues that because there was evidence of two separate events, one before and one after Johnson’s hospitalization in late June, a unanimity
*124
instruction was required. We disagree. A continuous course of conduct, by its nature, may stop and start, and the two-day period during which defendant- did not have charge of Johnson’s care did not interrupt his course of conduct. A close temporal connection is not required where the continuous course of conduct exception is implicated.
(People v. Avina, supra,
On the facts of this case, defendant’s failure to provide Johnson with appropriate nutrition, to help her to move when she was unable to move herself, to clean her when she was incontinent, and to cooperate with health care workers and caregivers attempting to assist him in providing necessary care, as well as his failure to provide adequate care by refusing to use the hospital bed and refusing to adhere to the instructions of the health care workers who came to the home, constituted a continuing course of conduct. A unanimity instruction was not required. The trial court’s refusal to instruct the jury pursuant to CALJIC No. 17.01 was not error.
IV., V. *
Disposition
The judgment is affirmed.
Jones, P. J., and Simons, J., concurred.
A petition for a rehearing was denied October 9, 2002, and the nonpublished portion of the opinion was modified. Appellant’s petition for review by the Supreme Court was denied November 26, 2002.
Notes
Trhe hospital attending physician testified that pressure sores (also called decubitus ulcers) are caused by pressure being exerted on an area of skin over a long period, and are consistent with long periods of sitting or lying down without moving.
Penal Code
See footnote, ante, page 116.
See footnote, ante, page 116.
CALJIC No. 17.01 reads as follows: “The defendant is accused of having committed the crime of_ [in Count _]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count_] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he][she] committed only one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count_], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.”
See footnote, ante, page 116.