Opinion
This is an appeal from a judgment rendered after a jury trial at which defendant was found guilty of violation of Penal Code 1 section 273.5, (corporal injury to spouse resulting in a traumatic condition).
*222 Appellant, Kenneth Thompson, was charged in a four-count information with forcible sodomy (§ 286, subd. (c)), forcible oral copulation (§ 288a, subd. (c)), spousal rape (§ 262, subd. (a)), and infliction of corporal injury on spouse (§ 273.5) during the period January 1, 1981 to January 21, 1981.
During trial the court granted the prosecution’s motions to dismiss the charges of forcible sodomy, oral copulation and spousal rape.
Criminal proceedings were suspended when appellant was found incompetent pursuant to section 1368; when he was returned to court as competent the court suspended imposition of sentence and placed him on probation for three years, one condition being that he live in a board and care facility and obey the rules of the house. He appeals that judgment and for the reasons which follow, we affirm.
In the fall of 1980 the Thompsons were married.
On December 31 of that year, appellant arranged for his wife, Evelyn, to undergo a sexual assault examination at Community Hospital, claiming she had been raped a few days earlier. The nurse practitioner, Rita Utterbeck, conducted a full examination of Evelyn and observed a number of bruises on her body, but was unable to confirm the “rape.”
During the first week of January, Detective Knobelauch was called to Community Hospital to investigate a rape reported again by Evelyn and appellant. Evelyn’s description of her assailant matched appellant’s appearance on that day. She said she had been raped, sodomized, and forced to orally copulate her attacker. Evelyn indicated that she had been raped by the same man one to two weeks previously. Throughout the interview appellant interrupted frequently, prompted his wife’s answers and refused to leave the room when asked to. Nurse Practitioner Rachel Hardester attempted to perform a complete sexual assault examination of Evelyn; she observed numerous bruises on Evelyn’s body. But appellant refused to allow her to conduct a pelvic examination and he and his wife left.
The Thompsons went to Community Hospital again two days later. An employee saw appellant slap Evelyn when she didn’t want to sign a record release form.
Subsequently, the Thompsons moved to Forrestville. Evelyn testified that while living there appellant frequently beat her, tied her feet together at night to prevent her from leaving, choked her and hit her with a breadboard.
Later in January three detectives, including Detective Knobelauch, went to the Thompson home to obtain a full statement from Evelyn concerning *223 the reported rape. She was not in the same condition that she had been at the beginning of the month; she now had two black eyes. Evelyn asked to go with the police because she feared appellant would kill her.
The police took her to the sheriff’s department, where photographs were taken of her physical condition.
Evelyn was then taken to Community Hospital where she was examined by Nurse Practitioner Fred Kontreras. She told him that appellant had been beating and sodomizing her. He observed extensive bruising with some of the bruises being old, others new. He opined that her injuries were consistent with battered wife syndrome.
Evelyn testified that her husband was the man who had raped her.
I
During the course of trial the jury heard evidence of numerous sexual and physical assaults suffered by Evelyn, Appellant claims that since the prosecutor was not required to elect which act he was relying on to prove the crime charged, appellant was denied his right to be informed of the particular act he was accused of committing. Further, he contends that the trial court erred in failing to give CALJIC No. 17.01 2 which informs the jury that they must agree unanimously on which act they based their guilty verdict. 3 He claims this denied him a unanimous jury verdict.
The problems complained of by appellant arise in cases where violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged. Our Supreme Court stated the rule of these cases in the recent case of
People
v.
Diedrich
(1982)
The doctrine of “election” and the requirement of an instruction on jury unanimity are based on the same long line of cases, beginning with
Castro.
Some of these cases have focused on the election aspect, finding error when the prosecutor fails to make an election. (See
People
v.
Yarber
(1979)
Neither instruction nor election are required, however, if the case falls within the continuous course of conduct exception. This exception arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. (E.g.,
People
v.
Mota
(1981)
This second category of the continuous course of conduct exception has been applied to a limited number of varying crimes, including pimping
(People
v.
Lewis
(1978)
The instant case is closely analogous to child abuse. In extending the exception to child abuse, the court in
People
v.
Ewing
stated that “[although the child abuse statute may be violated by a single act [citation], more commonly it covers repetitive or continuous conduct. [Citation.] Here, the information alleged a course of conduct in statutory terms which had occurred between two designated dates. The issue before the jury was whether the accused was guilty of the course of conduct, not whether he had committed a particular act on a particular day.”
(People
v.
Ewing, supra,
Like child abuse, this is a case where each individual act may not amount to a crime, but the cumulative outcome is criminal. “It is the continuing course of abuse which leads to prosecution and conviction.”
(People
v.
Epps
(1981)
Cases applying the continuous conduct exception have generally relied on statutory interpretation to justify a conclusion that the nature of the crime is ongoing. (See
People
v.
Lewis, supra,
77 Cal.App.3d at pp. 460-461;
People
v.
White, supra,
Originally, both crimes were included in the same statute, namely, section 273d. 4 In 1977 the Legislature amended section 273d, and added section 273.5 to separate the provisions relating to child abuse from those relating to wife abuse. However, the operative language in these statutes remained the same. 5 No inference can be drawn from such amendment that the Leg *226 islature intended to change the nature of the crimes. Retention of the nearly identical language for each crime negates such interpretation.
Appellant maintains that this exception should not apply to spousal battering because section 273.5 defines a form of battery that is “conceptually different” from child abuse. We disagree. Both the victim of spousal and of child abuse are likely to be unwilling to report their abuse to the authorities due to fear of physical and/or emotional retaliation on the part of the attackers. Both patterns of behavior are based on controlling another individual through violence. We see no “conceptual difference” between the two crimes.
Furthermore, there are sound policy reasons supporting this interpretation. If this exception did not apply the prosecutor, not knowing which act would convince the jury of guilt, would separately charge each act of violence. Assuming the jury believed that a majority or all of the acts took place, a defendant would then be subject to a much longer sentence.
Due process requires only that defendants be given adequate notice of the charges against them so that they may have a reasonable opportunity to prepare their defense and not be taken by surprise at trial.
(In re Hess
(1955)
Lastly, many of the cases requiring either election or a unanimity instruction involved multiple defense theories. In concluding that the failure to give CALJIC No. 17.01 was prejudicial, the court in
People
v.
Diedrich
stated that “[t]his is not a case where the jury’s verdict implies that it did not believe the only defense offered.”
(People
v.
Diedrich, supra,
*227 II *
The judgment is affirmed.
White, P. J., and Barry-Deal, J., concurred.
Notes
Unless otherwise indicated, all statutory references are to the Penal Code.
CALJIC 17.01 reads as follows: “The defendant is charged with the oifense of-He may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts, but in order to find the defendant guilty, all the jurors must agree that he committed the same act or acts. It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.”
All CALJIC instructions referred to are from the fourth edition (1979).
Section 273d previously read as follows: “Any husband who willfully inflicts upon his wife corporal injury resulting in a traumatic condition, and any person who willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for not more than 10 years or in the county jail for not more than one year.” (Added by Stats. 1945, ch. 1312, § 1, at p. 2462. Amended by Stats. 1957, ch. 1342, § 1, at p. 2673. Amended by Stats. 1965, ch. 1271, § 4, at p. 3146.)
Section 273d currently provides: “Any person who willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition is guilty of a felony . . . .”
Corresponding language is found in section 273.5: “Any person who willfully inflicts upon his or her spouse, or any person who willfully inflicts upon any person of the opposite sex with whom he or she is cohabiting, corporal injury resulting in a traumatic condition, is guilty of a felony . . . .” r
Part II of this opinion is not certified for publication. (See fn., ante, p. 220.)