David Brian 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 benefits. 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.

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. Unbeknownst to his treating doctors, Lewis had a previous diagnosis of epicondylitis. Despite general questions about Lewis’s previous injuries and medical conditions during the patient intake process, Lewis did not disclose that he had been previously diagnosed with 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.

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. 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 his family doctor that he was having pain in his left foot, and he was referred for further evaluation and was diagnosed bilateral plantar fasciitis. Lewis told his doctors 1999 that he had been having heel pain for the past 15 years. Lewis was asked when he first visited his PTP’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. 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.

Lewis was charged with insurance fraud based on his 2006 claim and his 2009 claim. After a month-long trial, a jury convicted Lewis of eight counts of insurance fraud in connection with workers’ compensation benefits that he received during two different time periods. Lewis appealed, and the court of appeal reversed in the unpublished opinion of People v Lewis.

Lewis challenged the judgment, arguing (among other things) that the trial court prejudicially erred in not giving a unanimity instruction to the jury; 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. The trial court declined to give the instruction, stating that the instruction 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. The Court of Appeal agreed and reversed.

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.” Cases 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. 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.

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