Filed 5/5/14 P. v. Lewis CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063121

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF26439)

DAVID BRIAN LEWIS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Imperial County, Ruth

Bermudez Montenegro, Judge. Reversed.



         John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.

Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted David Brian Lewis of eight counts of insurance fraud in

connection with workers' compensation benefits that he received during two different

time periods (Ins. Code, § 1871.4, subd. (a)(1) [counts 1, 6]; id., § 1871.4, subd. (a)(2)

[counts 2, 7]; Pen. Code, § 550, subd. (a)(1) [count 3]; id., § 550, subd. (b)(3) [counts 4,

9]; id., § 550, subd. (a)(5) [count 8]) and one count of grand theft of personal property

(Pen. Code, § 487, subd. (a) [count 10]). The jury further found that with respect to five

of the counts, Lewis had taken benefits exceeding $65,000 (id., § 12022.6).

       The trial court placed Lewis on five years' formal probation, with the condition

that he serve 30 days in jail and pay restitution in the total amount of $145,904.93.

       Lewis challenges the judgment, arguing that the trial court prejudicially erred in

(1) not giving a unanimity instruction to the jury; (2) admitting evidence of Lewis's past

workers' compensation claims; and (3) not instructing the jury, sua sponte, on the

meaning of "common scheme or plan" in Penal Code section 12022.6, subdivision (b).

We conclude that the trial court prejudicially erred in not giving a unanimity instruction,

and we accordingly reverse the judgment.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

       Lewis was employed by the California Department of Corrections at Centinela

State Prison starting in 1998, where he worked most recently as a plumber. During the

course of his employment, Lewis filed several claims for workers' compensation




                                              2
benefits.1 In the instant proceeding, Lewis was prosecuted for insurance fraud

concerning claims arising from an injury to his left arm in 2006 and an injury to his heels

that he reported in 2009.

A.     The 2006 Claim

       On October 24, 2006, Lewis filled out a workers' compensation claim form

reporting an injury that occurred at work on September 16, 2006, when he hit his left

hand while using pliers and developed soreness in his forearm. The claim was forwarded

to the State Compensation Insurance Fund (SCIF), which is the workers' compensation

claims administrator for Centinela State Prison.

       After reporting the injury, Lewis was treated by a number of doctors through the

workers' compensation system. First, Lewis was examined by Dr. Perry W. Beal, Jr.,

who diagnosed left lateral epicondylitis, commonly referred to as tennis elbow, and

placed Lewis on modified work duty, restricting him from pinching or palmar grasping

with his left hand. After Lewis exhausted the 60-day light duty work assignment

provided by the prison, he was off work for the duration of his arm injury.

       Despite physical therapy and medication, Lewis continued to complain of

discomfort in his elbow when pulling, lifting or twisting. Dr. Beal referred Lewis to an



1       According to the record, in addition to the two workers' compensation claims at
issue in this case, Lewis made a claim for (1) an ankle injury in January 2000, which was
denied; (2) an eye injury in June 2000, which was approved; (3) a groin injury in July
2000, which was approved; (4) work-related stress in October 2000, which was denied;
and (5) a back injury in July 2005, for which he was off work for a few days and placed
on light duty.

                                             3
orthopedic surgeon, Dr. Christopher Lai, for evaluation of surgical options. In January

2007, Dr. Lai diagnosed left lateral epicondylitis and treated Lewis with injections. After

treatment by Dr. Lai, the epicondyle pain abated, but Lewis developed pain in the

musculature of his left forearm.

       Dr. Lai referred Lewis to the care of an upper extremity specialist, Dr. William

Davidson, who examined Lewis in June 2007. Lewis reported to Dr. Davidson that he

had pain in his forearm upon forceful grasping or gripping or upon reaching forward and

lifting a light object with an extended elbow, and he was unable to grasp objects as light

as a large drinking glass without severe pain. Dr. Davidson diagnosed radial tunnel

syndrome in the left forearm and performed surgery on Lewis in September 2007. After

a period of recovery, Lewis was released by Dr. Davidson to return to work in January

2008 with no restrictions. In March 2008, Dr. Davidson reported that both the lateral

epicondylitis and the radial tunnel syndrome had been treated and cured with no resulting

disability or impairment.

       During the period when he was experiencing problems with his left arm, Lewis

obtained benefits through the workers' compensation system. He obtained $39,339.30 in

industrial disability leave through the prison, and $15,671.86 in benefits from SCIF.

       Unbeknownst to his treating doctors, Lewis had a previous diagnosis of

epicondylitis. In July 2000, Lewis reported to his family doctor, Dr. Benjamin Lehr, that

he was having pain in the arms, neck and shoulder. Upon examination, Dr. Lehr

determined that Lewis was suffering from epicondylitis. According to Dr. Lehr's



                                             4
testimony, epicondylitis is a chronic condition that rarely goes away by itself, and

symptoms will return each time it is aggravated.

       Despite general questions about Lewis's previous injuries and medical conditions

during the patient intake process at Dr. Beal's office and Dr. Lai's office, Lewis did not

disclose that he had been previously diagnosed with epicondylitis. Dr. Davidson was

also unaware of Lewis's prior treatment for epicondylitis.

       While Lewis was off work because of the arm injury, coworkers noticed and

reported certain activity by Lewis that they suspected to be inconsistent with Lewis's

claimed arm injury. In late 2006 or early 2007, a coworker saw Lewis driving his truck

on a bumpy dirt road using his left hand. A coworker also noticed a photo of Lewis

displayed at a gas station, in which Lewis was using his left hand to hold up a large fish

that he caught in September 2007. Another coworker drove past Lewis's house in March

2007 and observed Lewis getting his trailer ready to transport his all-terrain vehicles on a

camping trip.

B.     The 2009 Claim

       On August 25, 2009, after having been back to work for approximately a year and

a half following recovery from his arm injury, Lewis submitted an injury report and a

workers' compensation claim form stating that he had a cumulative trauma injury to his

left and right heels.

       A few months before filing the claim form in August 2009, Lewis started visiting

his private physician, Dr. Cyril Gostich, about his heel pain. Dr. Gostich diagnosed



                                              5
plantar fasciitis and plantar calcaneal spurring or stress fracture, and he treated Lewis

with injections.

       After Lewis filed the workers' compensation claim, he was examined by

Dr. Frederick Arbenz in August 2009, who diagnosed plantar fasciitis on both feet.

Dr. Arbenz put Lewis on modified work duty, if available, and restricted him from

repetitive standing or walking. After the pain had not improved upon a follow-up visit,

Dr. Arbenz referred Lewis to a podiatrist, Dr. Jeremiah Maloney, in September 2009.

       Dr. Maloney prescribed custom-made orthotics for Lewis's feet, which Lewis

starting using in January 2010. The orthotics did not resolve the heel pain, and

Dr. Maloney performed surgery on Lewis's left foot on February 26, 2010. Dr. Maloney

released Lewis to return to work in mid-July 2010.

       After being back at work for a few months, Lewis visited Dr. John Lane in

October 2010. As stated in Dr. Lane's report, Lewis reported "continued symptoms" and

"present[ed] for orthopedic assessment for change in treating physician after having

obtained legal representation." Lewis reported "ongoing bilateral heel pain," with more

pain in the left foot. Dr. Lane prescribed a course of physical therapy. Over the months

of treatment by Dr. Lane, Lewis's condition worsened. Dr. Lane concluded that Lewis

still had significant pain and was no longer able to perform his job duties as a plumber,

which required prolonged standing and walking on a continuous basis. In August 2011,

Dr. Lane determined that Lewis's condition was permanent and stationary and that Lewis

was unable to return to his normal occupation. Dr. Lane concluded that Lewis had a

"15% whole person impairment," and he apportioned 100 percent of the impairment to

                                              6
industrial injury, as there was "no substantial evidence for apportionment to preexisting,

underlying or nonindustrial factors."

       The workers' compensation benefits that Lewis obtained in connection with the

injury to his heels included $51,494.67 in industrial disability leave from the prison and

benefits of at least $31,118.59 paid by SCIF.

       Unbeknownst to his treating doctors in the workers' compensation system, Lewis

had a previous history with plantar fasciitis and heel spurs. In June 1999, he reported to

Dr. Lehr that he was having pain in his left foot, and he was referred to Dr. Gostich for

further evaluation. Dr. Gostich examined Lewis in 1999 and diagnosed bilateral plantar

fasciitis. A radiology report in 1999 showed some spurring of the plantar aspect of the

calcaneus. Lewis told Dr. Gostich in 1999 that he had been having heel pain for the past

15 years. Dr. Gostich testified that the heel pain Lewis complained of in 2009 was "most

probably" from the same plantar fasciitis condition that was diagnosed in 1999.

       Lewis was asked when he first visited Dr. Arbentz's office in August 2009 whether

he had any significant past medical history and specifically any previous foot injury. He

did not disclose the prior problems with his heels. Dr. Arbentz's report after his first

examination of Lewis stated, "Mr. Lewis states that he has no outside activities that are

causative or aggravating the situation. He has not had any prior ankle or foot injuries of

any significance, other than an occasional ankle sprain as a youth, none of which are

persistent and none of which have required treatment." Lewis also did not report his

prior problem with plantar fasciitis to Dr. Lane, choosing to report only a prior left elbow

injury and prior fractures of his toes and fingers.

                                              7
       At trial, the People introduced evidence of certain activities that Lewis engaged in

while being treated for heel pain that may have been inconsistent with his condition.

Among other things, the jury heard evidence that during the period 2008 to 2012, Lewis

was participating in a bowling league.

C.     The Criminal Proceedings Against Lewis

       After investigations were conducted, Lewis was charged with insurance fraud

based on his 2006 claim and his 2009 claim.

       Lewis was charged with five counts for the insurance fraud alleged to have

occurred between September 19, 2006, and March 31, 2008, in connection with the

workers' compensation claim arising from his arm injury, and five additional counts for

the insurance fraud alleged to have occurred between August 24, 2009, to November 30,

2011, relating to his heel injury.

       Specifically, for both time periods, Lewis was charged with (1) making or causing

to be made a false or fraudulent material statement or representation to obtain workers'

compensation benefits (Ins. Code, § 1871.4, subd. (a)(1) [counts 1, 6]); (2) presenting or

causing to be presented a knowingly false or fraudulent written or oral material statement

representation to obtain workers' compensation benefits (id., § 1871.4, subd. (a)(2)

[counts 2, 7]); (3) concealing or knowingly failing to disclose an occurrence affecting

entitlement to benefits (Pen. Code, § 550, subd. (b)(3) [counts 4, 9]); and (4) grand theft

of personal property by false pretenses (id., § 487, subd. (a) [counts 5, 10]). In addition,

for the earlier time period, Lewis was charged with presenting a false or fraudulent claim

for payment of a loss or injury (id., § 550, subd. (a)(1) [count 3]), and for the later time

                                              8
period, Lewis was charged with making a writing in support of a false or fraudulent claim

(id., § 550, subd. (a)(5) [count 8]). For each of the counts arising from the later time

period, the information alleged pursuant to Penal Code section 12022.6, subdivision

(a)(1) that Lewis took property exceeding $65,000 in value.

       After a month-long trial, a jury found Lewis guilty on all counts except for

count 5, which alleged grand theft of personal property in connection with the earlier

time period. The jury also made true findings for counts 6 through 10 that Lewis took

insurance benefits resulting in a loss in excess of $65,000 (Pen. Code, § 12022.6).

       The trial court placed Lewis on five years' formal probation. The trial court also

ordered Lewis to serve 30 days in jail and pay restitution of $54,470.87 to the State of

California, Division of Workers' Compensation and $91,434.06 to Centinela State Prison.

                                              II

                                       DISCUSSION

A.     The Trial Court Erred in Not Providing an Instruction on Unanimity

       Defense counsel requested that the trial court instruct the jury on the requirement

that the jury reach a unanimous decision as to which acts Lewis committed in violation of

each count.2 The trial court declined to give the instruction, stating that the instruction



2      The applicable unanimity instruction is contained in Judicial Council of California
Criminal Jury Instructions (2012), CALCRIM No. 3500. "The defendant is charged with
_______ <insert description of alleged offense> [in Count ___] [sometime during the
period of ________ to ________]. [¶] The People have presented evidence of more than
one act to prove that the defendant committed this offense. You must not find the
defendant guilty unless you all agree that the People have proved that the defendant
committed at least one of these acts and you all agree on which act (he/she) committed."
                                              9
was not needed "when there is a continuous course of conduct." Lewis contends that the

trial court prejudicially erred in declining to deliver a unanimity instruction. As we will

explain, we agree.

       1.     Standard of Review

       " '[A]ssertions of instructional error are reviewed de novo.' [Citation.] Whether or

not the trial court should have given a 'particular instruction in any particular case entails

the resolution of a mixed question of law and fact,' which is 'predominantly legal.'

[Citation.] As such, it should be examined without deference." (People v. Hernandez

(2013) 217 Cal.App.4th 559, 568 (Hernandez).)

       2.     The Applicable Law

       The requirement that the jury be instructed on unanimity in certain cases is based

on the principle that "[i]n a criminal case, a jury verdict must be unanimous." (People v.

Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) "[C]ases have long held that when the

evidence suggests more than one discrete crime, either the prosecution must elect among

the crimes or the court must require the jury to agree on the same criminal act.

[Citations.] [¶] This requirement of unanimity as to the criminal act 'is intended to

eliminate the danger that the defendant will be convicted even though there is no single

offense which all the jurors agree the defendant committed.' " (Ibid.)

       "A unanimity instruction is required only if the jurors could otherwise disagree

which act a defendant committed and yet convict him of the crime charged." (People v.

Maury (2003) 30 Cal.4th 342, 423 (Maury).) "[T]he unanimity instruction is appropriate

'when conviction on a single count could be based on two or more discrete criminal

                                              10
events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on

one discrete criminal event.' [Citation.] In deciding whether to give the instruction, the

trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes

and not agree on any particular crime, or (2) the evidence merely presents the possibility

the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single

discrete crime. In the first situation, but not the second, it should give the unanimity

instruction." (Russo, supra, 25 Cal.4th at p. 1135.) "A requirement of jury unanimity

typically applies to acts that could have been charged as separate offenses." (Maury, at

p. 423.)

       As relevant here, " 'a unanimity instruction is not required when the case falls

within the continuous course of conduct exception.' " (People v. Jenkins (1994) 29

Cal.App.4th 287, 298-299 (Jenkins).) "The continuous course of conduct exception

arises in two contexts. [Citation.] ' "The first is when the acts are so closely connected

that they form part of one and the same transaction, and thus one offense. [Citation.]

The second is when . . . the statute contemplates a continuous course of conduct of a

series of acts over a period of time." ' " (Hernandez, supra, 217 Cal.App.4th at p. 572.)

B.     A Unanimity Instruction Was Required

       Based on the pertinent legal principles, our central inquiry in examining the

applicability of the unanimity instruction is whether there was a risk that the jury would

convict Lewis without agreeing on any particular discrete criminal event. To analyze that

issue we will focus on the People's theory of guilt as presented to the jury. The

prosecutor's closing argument generally divided the misrepresentations made by Lewis

                                             11
into those made in connection with the 2006 claim and those made in connection with the

2009 claim. Our discussion will proceed accordingly.

         1.    The Prosecutor Argued Several Distinct Alleged Misrepresentations to
               Support the Counts Arising from the 2006 Workers' Compensation Claim

         Arising from the 2006 workers' compensation claim regarding his arm injury,

Lewis was convicted of four insurance fraud claims: (1) making or causing to be made a

false or fraudulent material statement or representation (Ins. Code, § 1871.4,

subd. (a)(1)); (2) presenting or causing to be presented a knowingly false or fraudulent

written or oral material statement representation (id., § 1871.4, subd. (a)(2));

(3) concealing or knowingly failing to disclose an occurrence affecting entitlement to

benefits (Pen. Code, § 550, subd. (b)(3)); and (4) presenting a false or fraudulent claim

for payment of a loss or injury (id., § 550, subd. (a)(1)). The verdict forms directed the

jury to a wide time frame for the four counts, stating that each of the crimes took place

"between the 19th day of September 2006 and the 31st day of March 2008."

         During closing argument, the prosecutor did not attempt to distinguish between the

four counts in describing the evidence, and instead took the general approach of

suggesting several different misrepresentations or omissions that Lewis made between

September 2006 and March 2008 in connection with the 2006 workers' compensation

claim.

         First, the prosecutor argued that Lewis made misrepresentations to the first two

doctors he saw for his arm injury — Dr. Beal and Dr. Lai — when they asked for his

medical history. Specifically, the prosecutor argued that Lewis failed to disclose to either


                                              12
Dr. Beal or Dr. Lai that he was diagnosed with epicondylitis in 2000, and also failed to

disclose some of his other prior industrial injuries. The prosecutor argued, "He has

preexisting conditions, which he took advantage of. And he didn't tell anybody because

he knew how to manipulate the system."

       Second, the prosecutor put forth a different argument as to the misrepresentations

that Lewis made to the third doctor he saw for his arm injury, Dr. Davidson. The

prosecutor argued that the evidence showed that by the time Dr. Davidson examined

Lewis in June 2007, the epicondylitis that had purportedly developed as a result of

Lewis's September 2006 workplace accident had been treated and cured. According to

the prosecutor, the radial tunnel syndrome that Dr. Davidson diagnosed and treated was a

completely different condition, which was not an industrial injury because it first arose in

mid-2007 while Lewis was off work on temporary disability. The prosecutor argued that

Lewis made a fraudulent misrepresentation by leading Dr. Davidson to believe that the

radial tunnel syndrome injury was the same injury that was already successfully treated

by Dr. Lai. Specifically, referring to the radial tunnel syndrome, the prosecutor argued

that Lewis "le[d] Dr. Davidson to believe it was work-related."

       Finally, the prosecutor suggested that Lewis lied about the extent of the injury to

his arm, stating, "If he has absolutely no injuries, . . . then everything he is saying about

his injuries is a misrepresentation. We come close to that in the 2006 case. . . . We're

real close to no injury here at all." The prosecutor argued, "He can't go to work because

of all of these restrictions, but he can play. He can go out there and play, and do all those

outside activities."

                                              13
       Because each category of misrepresentation was based on specific facts and

different theories as to why the statements were untrue, Lewis asserted different defenses

as to each of the categories of alleged misrepresentations. For example, one of Lewis's

central defenses to the claim that he failed to disclose his previous diagnoses was that the

omissions were not material. In contrast, in defending against the claim that he was not

actually in pain, as evidenced by his participation in outside recreational activities, Lewis

argued that his coworkers did not accurately describe what they saw him doing, and that,

in any event, the activities he participated in were not precluded by his disabilities.

       2.     The Prosecutor Argued Several Distinct Alleged Misrepresentations to
              Support the Counts Arising from the 2009 Workers' Compensation Claim

       The convictions arising from the 2009 workers' compensation claim regarding

Lewis's heel injury consisted of four insurance fraud counts: (1) making or causing to be

made a false or fraudulent material statement or representation (Ins. Code, § 1871.4,

subd. (a)(1)); (2) presenting or causing to be presented a knowingly false or fraudulent

written or oral material statement representation (id., § 1871.4, subd. (a)(2));

(3) concealing or knowingly failing to disclose an occurrence affecting entitlement to

benefits (Pen. Code, § 550, subd. (b)(3)); and (4) making a writing in support of a false or

fraudulent claim (id., § 550, subd. (a)(5)). The 2009 workers' compensation claim also

gave rise to a conviction for grand theft under the theory that Lewis used a false pretense

to obtain monetary benefits. (Id., § 487, subd. (a).) The verdict forms directed the jury to

a wide time frame for the five counts, stating that each of the crimes took place "on or




                                              14
about the 24th day of August of 2009 through and including the 30th day of November of

2011."

         The prosecutor's closing argument suggested more than one way in which Lewis

made misrepresentations in connection with the 2009 workers' compensation claim.

         First, the prosecutor pointed out that Lewis was asked about his medical history by

both Dr. Arbenz and Dr. Lane, but on neither occasion did Lewis disclose that he had

already been diagnosed with plantar fasciitis in 1999.

         Second, the prosecutor argued that Lewis made misrepresentations when he failed

to disclose to Dr. Arbenz that he engaged in outside activities, i.e., bowling and off-road

vehicle riding, that could cause or exacerbate his heel injury.

         Finally, the prosecutor suggested that Lewis might be exaggerating his symptoms

of heel pain and the resulting disability for the purpose of obtaining workers'

compensation benefits. The prosecutor stated, "I argue to you that Costco has asphalt,

WalMart has asphalt. The roads have asphalt. You saw him walking around his house

on cement driveway. . . . He can do anything he wants outside of work. But he can't do

these while inside of work. That's what I am arguing to you. These are

misrepresentations. . . . Dr. Davidson said pretty much don't expect him to do it outside

of work if it's hurting him. So the question now in your mind, is it really hurting him?"

         As was the case with the alleged misrepresentation arising from the 2006 workers'

compensation claim, Lewis set forth different defenses to the different categories of

misrepresentations that he allegedly made in connection with the 2009 workers'

compensation claim.

                                             15
       3.     There Was a Risk for Each Count That the Jurors Would Not Agree on the
              Same Criminal Event in Finding Lewis Guilty

       Although the statutes under which Lewis was charged contain slightly different

elements, they all generally require a finding that Lewis made either a misrepresentation

or omission in connection with an attempt to obtain insurance benefits.3 As we will

explain, because the prosecutor relied on a variety of different alleged misrepresentations

and omissions to argue for Lewis's guilt, there was risk that the jury would disagree on

which discrete misrepresentation or omission by Lewis supported a finding of guilt.

       First, with respect to the counts arising from the 2006 arm injury, the jury was

presented with several discrete events occurring at different times that could have led to a

finding that Lewis made a misrepresentation or omission to obtain insurance benefits. A

juror could have focused on (1) Lewis's statements to Dr. Beal in October 2006 about his

past medical history, omitting the past diagnosis of epicondylitis; (2) Lewis's statements

to Dr. Lai in January 2007, also omitting mention of the past diagnosis; (3) any of

Lewis's representations to Dr. Davidson, starting in June 2007, about his radial tunnel

syndrome symptoms that would have suggested the injury was work-related; or (4) any of


3       Based on the jury instructions, the jury was required to make the following
findings for each of the specific statutes under which Lewis was charged: Insurance
Code section 1871.4, subdivisions (a)(1) and (a)(2) required a finding that Lewis made or
caused to be made a false or fraudulent statement; Penal Code section 550, subdivision
(a)(1) required a finding that Lewis presented or caused to be presented a false or
fraudulent claim; Penal Code section 550, subdivision (b)(3) required a finding that
Lewis failed to disclose an event affecting an insurance benefit; Penal Code section 550,
subdivision (a)(5) required a finding that Lewis prepared, made or signed a document in
support of a false or fraudulent claim; and the count alleging grand theft by false
pretenses (Pen. Code, § 487) required a finding that Lewis made a false representation.

                                            16
Lewis's various statements to his doctors throughout his treatment for his arm injury that

exaggerated his pain, symptoms and disability. As these are very different types of

alleged misrepresentations, each involving distinct evidence, and each involving different

defenses, one juror could have decided that one of the alleged misrepresentations

supported a finding of guilt, while another juror could have focused on a completely

different one.

       Second, the same problem arises with respect to the misrepresentations and

omissions put forth by the prosecutor as a basis for the counts arising from Lewis's 2009

heel injury. The jury could have made findings of insurance fraud in that time period

based on (1) Lewis's failure to disclose to Dr. Arbenz in August 2009 that he had

previously been diagnosed with plantar fasciitis; (2) Lewis's failure to disclose that same

previous diagnosis to Dr. Lane in October 2010; (3) Lewis's failure to disclose to

Dr. Arbenz that he participated in outside activities that could have caused or exacerbated

his heel injury; or (4) any of Lewis's statements during his treatment for his heel injury

that might have overstated the extent of his pain and disability. As with the alleged

misrepresentations and omissions in the earlier time period, these alleged

misrepresentations and omissions each involve distinct evidence and different defenses,

creating a risk that one juror would find Lewis guilty based on one of the alleged

misrepresentations, while another juror relied on a wholly different misrepresentation.

       Further, as we have explained, "[a] requirement of jury unanimity typically applies

to acts that could have been charged as separate offenses." (Maury, supra, 30 Cal.4th at

p. 423.) Here, Lewis could have been charged in separate counts for each distinct

                                             17
misrepresentation instead of grouping the misrepresentations together in counts spanning

two extended time periods. (See People v. Gillard (1997) 57 Cal.App.4th 136, 148-150

[defendant charged with separate counts under Ins. Code, § 1871.4, subd. (a), all arising

out of the same workers' compensation claim, for (1) a false statement to a doctor in

October 1993 denying a prior knee injury; (2) a statement to the same doctor in March

1994 denying a prior knee injury; and (3) a statement to a different doctor in April 1994

denying a prior knee injury]; People v. Zanoletti (2009) 173 Cal.App. 547, 559, 560

(Zanoletti) [because insurance fraud under Pen. Code, § 550 "is concerned with the

means, not the end," separate criminal violations occurred upon separately statutorily

proscribed acts, even if the acts were pursuant to "a general scheme to present fraudulent

insurance claims"].)

       It is also significant that early in their deliberations, the jurors sent a note to the

trial court asking, "Explain the different counts." This suggests that the jury was likely

quite confused by the prosecutor's failure to specify which of Lewis's many different

representations over the course of his treatment were materially false and made with an

intent to defraud and corresponded to each of the 10 counts alleged against Lewis. In

light of the jury's confusion about the counts charged against Lewis, there is more than a

theoretical possibility that different jurors were focused on different acts as supporting

the different counts alleged against Lewis.

       Under these circumstances, when (1) a " 'conviction on a single count could be

based on two or more discrete criminal events' "; (2) "there is a risk the jury may divide

on two discrete crimes and not agree on any particular crime" (Russo, supra, 25 Cal.4th

                                               18
at p. 1135); and (3) the separate misrepresentations could be charged as separate crimes,

the trial court was required to give a unanimity instruction unless — as the People

contend — this case falls into the continuous course of conduct exception.

       4.     The Continuous Course of Conduct Exception Does Not Apply

              i.      The Alleged Misrepresentations Are Not So Closely Connected in
                      Time and Place That They Form Part of One and the Same
                      Transaction

       The first instance in which the continuous course of conduct exception applies is

" ' "when the acts are so closely connected that they form part of one and the same

transaction, and thus one offense." ' " (Hernandez, supra, 217 Cal.App.4th at p. 572.)

"This aspect of the continuous course of conduct exception " 'is meant to apply not to all

crimes occurring during a single transaction but only to those "where the acts testified to

are so closely related in time and place that the jurors reasonably must either accept or

reject the victim's testimony in toto." ' " (Jenkins, supra, 29 Cal.App.4th at p. 299, italics

added.) Further, "[t]his branch of the 'continuous conduct' exception . . . applies if the

defendant tenders the same defense or defenses to each act and if there is no reasonable

basis for the jury to distinguish between them." (People v. Crandell (1988) 46 Cal.3d

833, 875 (Crandell).)

       The preconditions for applying the continuous course of conduct exception are

not present here. First, the disparate alleged misrepresentations on which the People

relied to establish Lewis's guilt were not " ' "closely related in time and place." ' "

(Jenkins, supra, 29 Cal.App.4th at p. 299.) On the contrary, for both of the time periods,

the alleged misrepresentations were made over the course of months and years, spanning

                                              19
treatment by several different doctors. Second, this is not a case in which " ' "jurors

reasonably must either accept or reject the victim's testimony in toto." ' " (Ibid.) Due to

the nature of the alleged misrepresentations — which depend on different underlying

facts — the jury could have easily decided that Lewis made some of the

misrepresentations but not others. For example, one juror could have concluded that

Lewis was actually in pain and was disabled, but that he was at fault for intentionally

failing to disclose that he had preexisting conditions. A different juror could have

reached an opposite factual conclusion by deciding that Lewis was faking his pain and

disability. Third, Lewis did not "tender[] the same defense or defenses to each act."

(Crandell, supra, 46 Cal.3d at p. 875.) Instead, as we have explained, he set forth

completely different theories as to why he should not be convicted as to the different

alleged misrepresentations.

       The opinion most closely on point — and relied upon by the People for the

application of the continuous course of conduct exception — is People v. Dieguez (2001)

89 Cal.App.4th 266, 276, which discussed how the continuous course of conduct

exception applied to a prosecution for workers' compensation insurance fraud. In

Dieguez, the defendant claimed pain in several different body parts, all of which he

attributed to lifting a heavy package at work. Among other things, the defendant was

prosecuted for one count of insurance fraud (Ins. Code, § 1871.4, subd. (a)(1)) based on

several statements he made to a single doctor during a single office visit concerning his

various physical symptoms, his medical history and the cause of his injury (Dieguez, at

pp. 273, 275).

                                             20
       Dieguez concluded that despite the fact that the defendant made several

misstatements during the doctor's office visit, the continuous course of conduct exception

applied. It reached this conclusion because "the statements were made at the same

appointment . . . ; they were successive, compounding, and interrelated one to another;

they were all aimed at the single objective of obtaining workers' compensation benefits";

and the defendant asserted the same defense to all of the alleged misrepresentations,

claiming they all arose from innocent mistakes in communicating. (Dieguez, supra, 89

Cal.App.4th at p. 275.)

       Importantly, however, the defendant in Dieguez made earlier misrepresentations to

other individuals (his employer's personnel manager and his own attorney) concerning his

workers' compensation claim. Those misrepresentations were charged in a separate count

of insurance fraud. In the course of its discussion, Dieguez commented that the

misrepresentations on which the two different counts were based "were separated in time

by over two months, and concerned two separate transactions, in which appellant's

criminal intent was factually distinguishable," so that those misrepresentations "did not

form one continuous transaction for purposes of the unanimity instruction." (Dieguez,

supra, 89 Cal.App.4th at p. 276.)

       Dieguez does not support the People's contention that the continuous course of

conduct exception applies here. This case does not involve a single doctor visit or a

single defense to each of a series of interrelated misrepresentations as was the case in

Dieguez. Instead, it involves separate misrepresentations made to several different

people over a long period of time, as well as distinct defenses to the different

                                             21
misrepresentations. Accordingly, this case is much more like the second situation

discussed in Dieguez, in which misrepresentations took place over a long period of time

and were made to different people and thus did not form one continuous course of

conduct.

              ii.    The Applicable Statutes Do Not Contemplate a Continuous Course
                     of Conduct

       The second instance in which the continuous course of conduct exception applies

is " ' "when . . . the statute contemplates a continuous course of conduct of a series of acts

over a period of time." ' " (Hernandez, supra, 217 Cal.App.4th at p. 572.) Under this

approach, "[t]he continuous course of conduct exception has been 'applied to varying

crimes that cover " 'repetitive or continuous conduct' " [citation] such as child abuse

[citations]; misdemeanor child annoyance or molestation [citations]; pimping [citation];

pandering [citation]; failure to provide for a minor child [citation]; contributing to the

delinquency of a minor [citation]; and dissuading a witness from testifying [citation].' "

(Jenkins, supra, 29 Cal.App.4th at p. 299.)

       The first three statutory provisions under which Lewis was convicted are all

subdivisions of Penal Code section 550, each of which describe distinct events of

criminal conduct in connection with making a claim for insurance benefits. Subdivision

(a)(1) makes it a crime to "present . . . any false or fraudulent claim" for payment.

(§ 550, subd. (a)(1).) Subdivision (a)(5) makes it a crime to "[k]nowingly prepare, make

or subscribe any writing" in support of a false claim. (§ 550, subd. (a)(5).) Subdivision

(b)(3) makes it a crime to "[c]onceal, or knowingly fail to disclose the occurrence of, an


                                              22
event." (§ 550, subd. (b)(3).) Case law specifically has established that "[i]nsurance

fraud under section 550 is . . . concerned with the means, rather than the end." (Zanoletti,

supra, 173 Cal.App.4th at p. 560 [two separate crimes were completed when the

defendant, under a common scheme to obtain benefits, presented a false claim and

prepared a writing in support of the false claim].) As such, the statute does not

" ' "contemplate[] a continuous course of conduct of a series of acts over a period of

time" ' " (Hernandez, supra, 217 Cal.App.4th at p. 572), pursuant to a "general scheme to

present fraudulent insurance claims" (Zanoletti, at p. 560), but instead criminalizes

specific acts in the course of carrying out that scheme.4 In this case there were numerous



4      We note that when Penal Code section 550, subdivisions (a)(1) and (a)(5) refer to
the making of an insurance "claim," those provisions use the term "claim" in its "common
meaning" and "intend[] to proscribe the presentment of any false demand under a policy
of insurance irrespective of the form of that demand" (People v. Teitelbaum (1958) 163
Cal.App.2d 184, 212, italics added), which encompasses any of the various requests for
payment made by Lewis or his healthcare providers over the course of Lewis's treatment
and absence from work. Indeed, the jury was instructed, according to CALCRIM
No. 2000, on the meaning of the term "claim" as used in Penal Code section 550,
subdivision (a)(1) and (5). "A person claims, makes, or presents a claim for payment by
requesting payment under a contract on insurance for a loss or injury or health-care
benefit. [¶] A claim for payment of a health-care benefit includes a claim submitted by
or on behalf of the provider of a workers' compensation health benefit defined in the
Labor Code." Over the course of Lewis's treatment, his doctors submitted numerous
updates to SCIF describing Lewis's current condition to obtain payment for medical
expenses and authorization for further treatment. Further, these updates were used by
SCIF to authorize ongoing disability payments to Lewis on a monthly basis in lieu of his
regular salary. Lewis also filled out medical forms for different doctors describing his
symptoms and prior treatment that his doctors used to evaluate him and submit updates to
SCIF. Thus, each time that Lewis or his healthcare providers requested payment for a
medical expense or a disability payment, a new "claim" was made. Depending on a
specific juror's view of the case, different claims at different points in Lewis's treatment
could have been false or fraudulent for different reasons, with the two most obvious (and
conflicting) possibilities being (1) Lewis was no longer experiencing pain and disability
                                            23
different fraudulent acts done at different times that the prosecutor identified as possibly

supporting a conviction against Lewis, including making representations to various

doctors at different times about his physical condition and making representations to

doctors about his past treatment, any of which different jurors could have focused on in

convicting Lewis.

       The next two statutory provisions, Insurance Code section 1871.4, subdivisions

(a)(1) and (a)(2), focus specifically on workers' compensation insurance fraud, making it

illegal to "make or cause to be made a false or fraudulent material statement or material

misrepresentation (id., § 1871.4, subd. (a)(1)) and to "[p]resent or cause to be presented a

knowingly false or fraudulent written or oral material statement" (id., § 1871.4,

subd. (a)(2)). Both of these statutes describe the discrete event of making a particular

false statement. We perceive no reason that the observation Zanoletti made with respect

to the more broadly applicable insurance fraud provisions of Penal Code section 550

should not also apply to the more specific workers' compensation insurance fraud

provisions set forth in Insurance Code section 1871.4. As the statute criminalizes

specific acts performed in the course of committing insurance fraud, just like Penal Code

section 550 does, Insurance Code section 1871.4 addresses the means of committing the

fraud, not the end, and accordingly, like Penal Code section 550, does not contemplate a

continuous course of conduct.

at some point in his treatment and was lying about his symptoms to certain doctors; or
(2) although Lewis's symptoms were genuine, he falsely represented that he developed
them while working, instead of disclosing that both his arm pain and his heel pain were
chronic preexisting problems.

                                             24
       Finally, we conclude that although a grand theft conviction can in some instances

be based on the aggregation of similar thefts (People v. Bailey (1961) 55 Cal.2d 514,

519), the count of grand theft by false pretenses as prosecuted in this case (Pen. Code,

§§ 484, 487, subd. (a)) was not based on a continuous course of conduct with one

underlying false pretense, but instead, like the insurance fraud counts, was presented by

the prosecutor as based on several distinct false pretenses leading to the various payments

obtained by Lewis, with the risk that different jurors could have focused on completely

different false pretenses or monetary payments. (See People v. Laport (1987) 189

Cal.App.3d 281 [continuous course of conduct exception did not apply in prosecution for

grand theft where finding of guilt could have been based on several different distinct acts

of taking property because defendant offered distinct defenses].) As stated in the jury

instructions, the count of theft through false pretenses was focused on whether there was

proof that the defendant made a specific misrepresentation leading to a specific payment

of money to Lewis.5

       Accordingly, none of the statutory provisions under which Lewis was convicted

contemplates the commission of a crime through a continuous course of conduct of a

series of acts over a period of time. The continuous course of conduct exception to the




5      We note that there were at least three distinct types of monetary payments for the
2009 injury, which the prosecutor distinguished in his closing argument: (a) industrial
disability leave of approximately $52,000 paid over the course of months; (b) a
settlement in late 2011 of approximately $30,000 for permanent disability; and
(c) medical expenses over the course of treatment.
                                            25
unanimity requirement therefore does not apply here, and the trial court was required to

instruct the jury on unanimity.

C.     The Error Was Prejudicial

       Having concluded that the trial court erred in not instructing on unanimity, we

examine whether the error was prejudicial.

       Although there is a split in the case law as to whether failure to instruct on

unanimity is a federal constitutional error to be evaluated for prejudice under the standard

set forth in Chapman v. California (1967) 386 U.S. 18, 24, "[t]he majority of the courts

that have addressed the issue have applied Chapman." (Hernandez, supra, 217

Cal.App.4th at p. 576.) Further, the People concede in the respondent's brief that the

Chapman standard applies here. Accordingly, we apply Chapman to evaluate whether

the trial court's error in failing to instruct on unanimity was harmless beyond a reasonable

doubt. (Chapman, at p. 24.)

       "Under Chapman, '[w]here the record provides no rational basis, by way of

argument or evidence, for the jury to distinguish between the various acts, and the jury

must have believed beyond a reasonable doubt that [the] defendant committed all acts if

he committed any, the failure to give a unanimity instruction is harmless.' [Citation.] For

example, where the defendant offered the same defense to all criminal acts, and 'the jury's

verdict implies that it did not believe the only defense offered,' failure to give a unanimity

instruction is harmless error. [Citation.] But if the defendant offered separate defenses to

each criminal act, reversal is required." (Hernandez, supra, 217 Cal.App.4th at p. 577.)



                                             26
       Here, there is no way to determine whether each juror agreed that Lewis was

guilty based on the same misrepresentations. For example, some of the jurors may have

found that Lewis made material misrepresentations about whether he was in pain and

disabled on various occasions throughout his treatment, while some jurors may have

rejected that finding and instead concluded that Lewis fraudulently failed to disclose that

he had preexisting medical conditions. The alleged misrepresentations were very

different from each other, each involving their own set of facts to support them, and each

accompanied by separate defenses offered by Lewis. A juror could easily have rejected

one of the alleged misrepresentations as a basis for the verdict while accepting another.

       Case law also holds that an error in failing to give a unanimity instruction is

harmless " '[w]here the record indicates the jury resolved the basic credibility dispute

against the defendant and therefore would have convicted him of any of the various

offenses shown by the evidence . . . .' " (Hernandez, supra, 217 Cal.App.4th at p. 577.)

However, that concept applies only where the circumstances establish that the jury

"accepted the prosecution's case in its entirety." (People v. Thompson (1995) 36

Cal.App.4th 843, 853.) This is not such a case. As we have explained, the jury rejected

one of the grand theft counts. Further, the unanimity problem in this case arises from the

risk that the jury did not agree on how Lewis went about committing the alleged fraud,

i.e., which representations were material, false and made with an intent to defraud.

Although each juror may have concluded that Lewis committed insurance fraud through

some means, the record does not reflect any determination by the jury that would allow us

to conclude beyond a reasonable doubt that each of the jurors, if asked, would have given

                                             27
the same answer about which of Lewis's representations were material, false and made

with an intent to defraud.

       The prosecutor's unfocused approach heightened the risk that the individual jurors

did not have the same misrepresentations in mind when reaching their verdicts on the

different counts. Instead of setting forth a coherent theory of the case in which he

explained what the People were claiming as Lewis's materially false misrepresentations,

the prosecutor set forth factually inconsistent theories about how Lewis might have

committed insurance fraud and, without further guidance, required the jurors to (1) select

among those theories, and (2) to decide which of the different misrepresentations

corresponded to each of the 10 counts alleged against Lewis. The prosecutor was not

required to clarify which acts gave rise to the crimes alleged against Lewis, but since he

did not provide that clarification, a unanimity instruction was required.

       Under the circumstances, we cannot determine that the failure to give the

unanimity instruction was harmless beyond a reasonable doubt.

D.     Lewis's Remaining Appellate Contentions

       In addition to arguing that the trial court erred in failing to give a unanimity

instruction, Lewis argues (1) the trial court erred in admitting evidence of his past

workers' compensation claims; and (2) the trial court should have sua sponte instructed

on the definition of "common scheme or plan" in Penal Code section 12022.6,

subdivision (b). Because we are reversing the judgment based on instructional error

independent of Lewis's other appellate contentions, we need not and do not reach these

additional arguments.

                                             28
                                  DISPOSITION

    The judgment is reversed and this matter is remanded for further proceedings.



                                                                            IRION, J.

WE CONCUR:



      O'ROURKE, Acting P. J.



                   AARON, J.




                                        29
