Rae

Defendant Nicholas Hayes Rae appeals his conviction of one count of elder abuse. (Pen. Code, § 368, subd. (b)(1).) He claims error in the admission of evidence of uncharged personal and financial misconduct and instructional error. We hold that the evidence of uncharged misconduct was admissible under Evidence Code sections 1101, subdivision (b) and 1109, subdivision (a)(2) and that the jury instructions were proper. In the published portion of the opinion, we hold that a unanimity instruction under CALJIC No. 17.01 was not required because defendant was engaged in a continuous course of conduct.

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…