Vargas

In a single-count information, appellant Feliciana Bautista Vargas was charged with committing felony child abuse and endangerment between September 8-17, 1986, in violation of Penal Code section 273a, subdivision (1). [1] After a jury found appellant guilty as charged, the trial court sentenced her to the midterm of four years in state prison. This appeal followed.

Appellant contends: (1) the trial court erred in failing to instruct sua sponte that in order to return a verdict of guilty, the jury (a) had to agree unanimously on one or more acts or omissions constituting the crime, and (b) had to agree unanimously that appellant willfully committed the acts in question or was responsible as the result of culpable negligence; and (2) the trial court failed to instruct the jury that in order to find willful child endangerment, the jury had to find she had knowledge that her acts or failure to act would endanger the health and welfare of the child victim. For the reasons that follow, we affirm the judgment.

On the afternoon of September 17, 1986, a police officer was contacted by a handyman, Abraham Perez, who, while making repairs at appellant's apartment, had…

In a single-count information, appellant Feliciana Bautista Vargas was charged with committing felony child abuse and endangerment between September 8-17, 1986, in violation of Penal Code section 273a, subdivision (l). 1 After a jury found appellant guilty as charged, the trial court sentenced her to the midterm of four years in state prison. This appeal followed.

Appellant contends: (1) the trial court erred in failing to instruct sua sponte that in order to return a verdict of guilty, the jury (a) had to agree unanimously on one or more acts or omissions constituting the crime, and (b) had to agree unanimously that appellant willfully committed the acts in question or was responsible as the result of culpable negligence; and (2) the trial court failed to instruct the jury that in order to find willful child endangerment, the jury had to find she had knowledge that her acts or failure to act would endanger the health and welfare of the child victim. For the reasons that follow, we affirm the judgment.

Facts

On the afternoon of September 17, 1986, a police officer was contacted by a handyman, Abraham Perez, who, while making repairs at appellant’s apartment, had…

Concurring and Dissenting.—I concur with all of the majority opinion except that part of part I which holds that the evidence established only one continuing course of criminal conduct and therefore no *1470 sua sponte duty of the trial court to instruct the jurors that they had to unanimously agree that defendant was guilty as the result of willful conduct or criminal negligence or both in order to convict her. From that portion of the decision I dissent.

Necessarily my partial concurrence means that I agree with the majority that in the case of a violation of Penal Code section 273a the jury need not be instructed that it had to unanimously agree that defendant committed the same act or acts or made the same criminal omission or omissions in order to convict, nor need it be instructed that it must unanimously agree on the same theory of liability in order to convict. (People v. Madden (1981) 116 Cal.App.3d 212, 218 [ 171 Cal.Rptr. 897 ]; People v. Failla (1966) 64 Cal.2d 560, 567 [ 51 Cal.Rptr. 103 , 414 P.2d 39 ].)

I believe that the majority’s analogy to aiding and abetting is inapposite since defendant was neither tried on an aiding and abetting theory nor does either party…