Return to CALJIC Part 14-17 – Contents
F 17.01 n1 Juror Unanimity: Prosecution Must Elect If Requested.
If the defendant’s request for the prosecution to elect the act it will rely upon is not granted, the error is reversible even though a unanimity instruction (CJ 17.01) is given. (People v. Salvato (91) 234 CA3d 872, 878-84 [285 CR 837].)
[Research Note: See FORECITE BIBLIO 17.01.]
F 17.01 n2 Juror Unanimity: Evidence Necessitating Instruction.
There are five principles which have emerged from the juror unanimity case law. (People v. Melendez (90) 224 CA3d 1420, 1428 [274 CR 599].)
First, the general rule is that when there is evidence of more than one incident from any one of which the jury could conclude the defendant was guilty of a particular offense, CJ 17.01 or an equivalent instruction must be given. (People v. Diedrich (82) 31 C3d 263, 282 [182 CR 354]; People v. Moore (89) 211 CA3d 1400, 1415 [260 CR 134].) “In a criminal case, the jury must agree unanimously that defendant is guilty of a specific crime. [Citation.]” (People v. Benavides (2005) 35 C4th 69, 101.) “In order to eliminate the danger that the defendant will be convicted even though there is no single offense which all jurors agree the defendant committed, when the evidence suggests more than one distinct crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal conduct. [Citation.]” (Ibid.)
Second, a unanimity instruction is not required when the case falls within the continuous course of conduct exception. (Melendez at 1428-30; see also People v. Avina (93) 14 CA4th 1303, 1309-13 [18 CR2d 511] [listing “continuous-course-of-conduct” crimes].)
Third, where there is no reasonable basis for the jury to distinguish between multiple acts shown by the evidence, a number of cases have determined that no unanimity instruction is required. (See Benavides, 35 C4th at 101 [CJ 17.01 need only be given when the evidence shows that “more than one distinct crime” may have been committed]; People v. Russo (2001) 25 C4th 1124, 1132-33 [same]; see also Melendez at 1430-32; Moore at 1416; People v. Winkle (88) 206 CA3d 822, 828-29 [253 CR 726].) On the other hand, multiple acts may constitute “distinct crimes” even if committed during a single incident or transaction if there is a basis for the jury to “disagree about which acts [the defendant] committed.” (People v. Benavides (2005) 35 C4th 69, 98 [implying that unanimity instruction is required when the jury may agree that the defendant committed charged crime [e.g., assault] but “disagree about which acts he committed.”]; see also People v. Thompson (95) 36 CA4th 843, 853 [prejudicial error in failing to give unanimity instruction where different defenses gave jury a rational basis to distinguish between various acts].)
Fourth, the jury is not required to agree on the specific “theory” of guilt. (Melendez at 1432-33.)
Fifth, where a single crime can be proven by different theories based on different acts a unanimity instruction may be required. (Melendez at 1433-34; People v. Dellinger (84) 163 CA3d 284, 300-02 [209 CR 503]; see also People v. Potts DEPUBLISHED (85) 165 CA3d 904 [212 CR 57]; but see People v. Hernandez (95) 34 CA4th 73 [40 CR2d 223]; People v. Davis (92) 8 CA4th 28 [10 CR2d 381] [unanimity is not required when the prosecution relies upon different theories (e.g., aiding and abetting and direct perpetration) even if based on different acts].) [See FORECITE F 17.01 n3.] [For briefing and a depublished opinion on the question of whether the jury must agree upon different theories (People v. Potts DEPUBLISHED (85) 165 CA3d 904 [212 CR 57]), ask for Brief Bank # B-596 and Opinion Bank # O-157.] [Additional briefing on the necessity of unanimity as to different acts, as opposed to different mental states is available to FORECITE subscribers. Ask for Brief Bank # B-577b. This briefing criticizes People v. Sutherland (93) 17 CA4th 602 [21 CR2d 752] and provides an interesting tie-in between juror unanimity and harmless error analysis per People v. Guiton (93) 4 C4th 1116, 1129-30 [17 CR2d 365].]
These principles illustrate the importance of offering different defenses, counter evidence, and/or arguments as to the multiple acts in order to obtain a unanimity instruction. For example, if the primary defense is to attack the witness’ credibility, there still may be alternate attacks such as misidentification, etc. which may apply with greater force to one of the acts as opposed to the other. Moreover, even if the defenses are not different, the strength of the prosecution’s evidence may vary between one act and the other and this, too, should provide a basis for the unanimity instruction. (See, e.g., People v. Riel (2000) 22 C4th 1153, 1199-1200 [96 CR2d 1] [court reviews the defense presented and the relative strength of the evidence as to the two acts in concluding that the jury could not have disagreed]; People v. Madden (81) 116 CA3d 212, 214-20 [171 CR 897]; see also FORECITE F 4.71.5a.)
Although the federal constitutional right to juror unanimity does not apply to the states (Apodaca v. Oregon (72) 406 US 404, 406 [32 LEd2d 184; 92 SCt 1628],) the failure of the jury to agree upon the act committed implicates 14th Amendment due process principles by lessening the prosecution’s burden of proof. (People v. Deletto (83) 147 CA3d 458, 472 [195 CR 233]; see also Melendez at 1433.)
(See also PG VIII(A).)
[Research Note: See FORECITE BIBLIO 17.01]
F 17.01 n3 Juror Unanimity: Theory Versus Act.
In determining whether juror unanimity is required, traditionally the courts have focused upon whether the prosecution has presented evidence of different acts as opposed to different theories. For example, when there is evidence of more than one incident from which the jury could conclude the defendant was guilty of a single charged offense, unanimity generally is required. (See People v. Diedrich (82) 31 C3d 263, 283 [182 CR 354].) On the other hand, there is no unanimity requirement as to multiple theories of 1st degree murder. (People v. Melendez (90) 224 CA3d 1420, 1432-33 [274 CR2d 599].)
In People v. Perez (93) 21 CA4th 214, 222-23 [26 CR2d 691] held that juror unanimity is not required in those cases where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event. On the other hand, when conviction on a single count could be based on two or more discrete criminal events, juror unanimity as to the same discrete criminal event is required. (Ibid.)
A. Aider And Abettor Versus Perpetrator: See People v. Majors (98) 18 C4th 385, 408 [75 CR2d 684] [jury need not decide unanimously whether defendant was guilty as the aider and abettor or as the direct perpetrator]. Prior to Majors the courts disagreed over whether unanimity is required when the evidence presents evidence of acts which support the defendant’s liability both as a principal and as an aider and abetter. (Compare People v. Melendez (90) 224 CA3d 1420 [274 CR2d 599] with People v. Davis (92) 8 CA4th 28 [10 CR2d 381] and People v. Sutherland (93) 17 CA4th 602 [21 CR2d 752]; see also People v. Gonzales (95) 31 CA4th 1248, 1255 [37 CR2d 537] [agreeing with Davis and not Melendez].)
People v. Hernandez (95) 34 CA4th 73 [40 CR2d 223] held that Melendez (People v. Melendez (90) 224 CA3d 1420 [274 CR 599]) was effectively overruled by the California Supreme Court in People v. Santamaria (94) 8 C4th 903, 918-19 [35 CR2d 624]. Under the Hernandez analysis, unanimity is not required for multiple theories or acts upon which a “discrete criminal event” is predicated. However, a unanimity instruction is required where a single count is based on two or more “discrete criminal events”.
While the Hernandez court does not explain what it meant by the term “discrete criminal event,” it would seem logical that an event which could be the basis for a separate criminal conviction would qualify as a “discrete criminal event.” For example, alternate theories of liability based on aiding and abetting and direct perpetrator liability would expose the defendant to only a single conviction and, hence, unanimity would not apply. On the other hand, where there is evidence of multiple acts — each of which, if proven, could be the basis for a separate criminal offense — then a unanimity instruction is required. (See People v. Madden (81) 116 CA3d 212, 214-20 [171 CR 897] [evidence presented of two separate sexual acts] (note that Madden was from the same district as Melendez and Hernandez); see also People v. Diedrich (82) 31 C3d 263, 281 [182 CR 354] [“There simply is no escape from the fact that two separate violations of Section 165 were proved under the umbrella of Count 1 ….”]; People v. Castro (01) 133 C 11, 13 [65 P 13] [“the court, in some form, should have directed [the jurors’] minds to the particular act of intercourse which it was incumbent upon the state to establish by the evidence ….”]; People v. Ferguson (82) 129 CA3d 1014, 1020-21 [181 CR 593] [multiple assaults committed on separate victims].)
The “discrete criminal event” requirement should not be read to relieve the need to find unanimity as to closely connected acts which form part of one transaction when the defendant tenders different defenses as to each act or if there is otherwise a “reasonable basis for the jury to distinguish between them. [Citations.]” (People v. Crandell (88) 46 C3d 833, 875 [251 CR 227].) [An unpublished opinion concluding that unanimity is required as to the act upon which a charge of battery was predicated is available to FORECITE subscribers. Ask for Opinion Bank # 0-177.]
B. Differing Courses Of Conduct: Another act versus theory issue arises when the defendant is charged with a criminal statute which proscribes differing courses of conduct, proof of any of which would be sufficient to establish the actus reus of the offense. In Schad v. Arizona (91) 501 US 624 [115 LEd2d 555; 111 SCt 2491], a majority of the court agreed that the requirement of due process imposes some limits on the degree to which a jury may be allowed to disagree on the specific conduct which constitutes a single offense. All but one member of the court agreed that, at a minimum, due process would not permit a state to convict anyone under an overly generic statute. However, though there was agreement on the due process question, the members of the court could not agree how to apply the limitation on which they agreed. Justice Souter’s plurality opinion concluded that the court should look to history and common practice to determine whether the state has defined as a single crime multiple offenses that are inherently separate. (115 LEd2d at 570-71.)
People v. Davis (92) 8 CA4th 28 [10 CR2d 381], though discussing Schad at length, does not address the question raised but not answered in Schad as to the degree to which it is proper to include disparate factual elements under the rubric of a single offense, and then to plead and prove two or more of those alternatives without any assurance that the jury will agree on any one of them. Rather, Davis would authorize a non-unanimous verdict whenever the verdict is based on “one discrete criminal event.” (8 CA4th at 45.) As set forth in People v. Sutherland (93) 17 CA4th 602 [21 CR2d 752], “the Davis standard fails to address the problem created where the criminal event, as defined by the statute, … may consist of different alternative acts which may occur in different places and at different times. Under either view taken in Schad, the application of such a statute may require some assurance of unanimity to avoid the due process concerns expressed by all members of the court in that case, either because the statute combines disparate and nontraditional factual elements into a single offense, or because it offers alternative means to conviction, each with their own distinct set of elements.” (Sutherland 17 CA4th at 617.)
C. Different Theories Of Malice: People v. Brown (95) 35 CA4th 708, 714 [41 CR2d 321] held that the jury need not unanimously agree upon the theory of malice to convict for second-degree murder.
PRACTICE NOTE: Multiple Theories — Guiton Alert: Trial and appellate strategies now that defendant has burden to show prejudice from factual insufficient theory. (See FORECITE PG X(B)(5).)
RESEARCH NOTES: See Annotation, Requirement of jury unanimity as to mode of committing crime under statute setting forth the various modes by which offense may be committed, 75 ALR4th 91 and Later Case Service.
[Research Note: See FORECITE BIBLIO 17.01]
F 17.01 n4 Juror Unanimity: Constitutional Principles.
6th Amendment Trial By Jury: While the United States Supreme Court has held that there is no right to a unanimous verdict as to all twelve jurors, (see Apodaca v. Oregon (72) 406 US 404 [32 LEd2d 184; 92 SCt 1628]), it has also declared that there do exist size and unanimity limits that cannot be transgressed if the essence of the jury trial right is to be maintained. Thus, Ballew v. Georgia (78) 435 US 223 [55 LEd2 234; 98 SCt 1029] held that a reduction in the size of a jury to below six persons in non-petty criminal cases raises such substantial doubts as to the fairness of the proceeding and the jury’s ability to represent the true sense of the community that it deprives the accused of his or her right to trial by jury. For the same reasons, the court concluded in Burch v. Louisiana (79) 441 US 130, 137-38 [60 LEd2d 96; 99 SCt 1623] that conviction for a non-petty offense by only five members of a six-person jury presents a similar threat to the preservation of the substance of the jury trial guarantee and, hence, violates the 6th Amendment as applied to the states through the 14th Amendment. Hence, at least in cases where three or more acts were presented to the jury, Birch and Ballew suggest that the right to trial by jury would be violated by the failure to require juror agreement since the jurors could have been equally divided among the three acts and, hence, conviction could have been based upon agreement of only four jurors. Moreover, even when only two acts are involved, as few as six jurors may agree on a particular act and this may also be insufficient since the “line separating the permissible jury practice from the impermissible [is] not… the brightest….” (Brown v. Louisiana (80) 447 US 323, 331 [65 LEd2d 159; 100 SCt 2214].)
(See FORECITE F 17.01 n39.)
14th Amendment Due Process. The due process underpinnings of the rule requiring juror agreement on the criminal act committed by the defendant are based on common law precepts and well-settled California decisions. (See e.g. People v. Castro (1901) 133 C 11 [65 P 13]; People v. Williams (1901) 133 C 165 [65 P 323].) “Jury unanimity is a constitutionally based concept, ‘the defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. [Citation.]” (People v. Melhado (98) 60 CA4th 1529, 1534 [70 CR2d 878].) The rule actually stems from the long-standing notion of fairness and due process related to the requirement that the defendant be given notice as to the particular act upon which the charges will be proven. (See Hamling v. U.S. (74) 418 US 87, 117-18 [41 LEd2d 590; 94 SCt 2887]; U.S. v. Hess (1888) 124 US 483, 487 [31 LEd2d 516; 8 SCt 571]; People v. Jones (90) 51 C3d 294, 311-12 [270 CR 611]; see also Williams, 133 C at 169.) Hence, it has been widely recognized that the erroneous omission of a unanimity instruction is a violation of federal due process principles. (See People v. Deletto (83) 147 CA3d 458, 471-72 [195 CR 233]; see also People v. Brown (96) 42 CA4th 1493, 1501-02 [50 CR2d 407]; People v. Thompson (95) 36 CA4th 843, 853 [42 CR2d 798].) “[S]ubstantial agreement on a discrete set of actions is essential to insure that the defendant is guilty beyond a reasonable doubt of some specific illegal conduct.” (U.S. v. Edmonds (3d Cir. 1996) 80 F3d 810, 819; U.S. v. Echeverri (3rd Cir. 1988) 854 F2d 638.)
Furthermore, the common-law underpinnings of the rule are a basis for finding that the rule is embraced within the due process provisions of the Fourteenth Amendment. As recognized by the United States Supreme Court, the courts should look to the common law to determine whether the defendant has a vested due process right in a particular defense. (See Montana v. Egelhoff (96) 518 US 37 [135 LEd2d 361; 116 SCt 2013] [plurality opinion]; see also Schad v. Arizona (91) 501 US 624 [115 LEd2d 555; 111 SCt 2491].)
Impact Of Schad v. Arizona. In Schad v. Arizona (91) 501 US 624 [115 LEd2d 555], the Supreme Court addressed the question of whether juror unanimity is required when the prosecution relies upon felony murder and premeditation/deliberation as alternate theories of first degree murder. (FORECITE discusses the implications of Schad upon this issue at FORECITE F 17.01 n3.)
It should also be noted that Schad makes some obscure comments upon the issue of juror unanimity regarding actus reus, the meaning of which is not entirely clear. In Schad the court referred to several older federal cases in which juror unanimity regarding the precise means of committing the act (e.g., shooting or drowning) is not required. The court went on to observe that this “fundamental proposition” is embodied in Federal Rule of Criminal Procedures 7(c)(1) which provides that “[i]t may be alleged in a single count that the means by which the defendant committed the offense are unknown, or that the defendant committed it by one or more specified means.” From this rule of pleading the court concludes that jurors should not be required to agree upon a single means of commission of any given offense. “In these cases, as in litigation generally, ‘different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.’ [Emphasis added.] [Citation.] (Schad, 501 US at ____.)
However, this language should not limit the scope of the juror unanimity doctrine in California for several reasons.
First, the language is merely dictum. The issue in Schad was whether or not juror unanimity is required regarding the mens rea of felony murder and premeditation/deliberation. Besides the above-quoted language, there is no discussion or analysis of the due process considerations which may come into play when the evidence establishes commission of different criminal acts.
Second, the lack of a “general requirement” as to juror unanimity regarding preliminary factual issues does not preclude the applicability of due process principles when the evidence shows multiple acts which constitute separate offenses. Indeed, Schad’s analysis of the mens rea issue turned upon the question of whether the alternate means shown by the evidence “exemplify two inherently separate offenses.” (Schad, 501 US at ___ [115 LEd2d at 555].) In this sense, Schad is perfectly consistent with California law which requires no unanimity instruction for a continuous course of conduct or when there is no reasonable basis for the jury to distinguish between the multiple acts. (See FORECITE F 17.01 n2.)
Third, the juror unanimity doctrine in California is founded upon both federal due process and a long standing construction of the state constitutional right to a unanimous jury verdict. (Cal. Const., Art. I, § 16.) (People v. Mickle (91) 54 C3d 140, 178 [284 CR 511]; see also People v. Wheeler (78) 22 C3d 258, 265 [148 CR2d 890]; People v. Madden (81) 116 CA3d 212, 219 [171 CR 897]; People v. McNeill (80) 112 CA3d 330, 335 [169 CR 313].) Hence, even if Schad is construed to limit the federal due process right, the state constitutional right to juror unanimity should remain viable.
(See FORECITE PG VII(C)(48).)
[Research Note: See FORECITE BIBLIO 17.01]
F 17.01 n5 Juror Unanimity: Felony Murder.
ALERT #1: This argument was rejected in People v. Carpenter (97) 15 C4th 312, 394-95 [63 CR2d 1] but may still be viable in federal court, especially in light of Apprendi and Ring. (See ALERT # 2, below.)
ALERT #2: Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348], Ring v. Arizona (2002) 536 US 584 [153 LEd2d 556; 122 SCt 2428] and Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531] provide a basis for arguing that unanimity of theory is required. (See generally FORECITE PG VII(C)(32).) This argument was rejected in People v. Nakahara (2003) 30 C4th 705 [134 CR2d 223]. However, the argument may still be viable in federal court on habeas corpus or certiorari.
The California Supreme Court has held that juror unanimity is not required as to a particular theory of first degree murder. (People v. Milan (73) 9 C3d 185 [107 CR 68]; People v. Guerra (85) 40 C3d 377, 386 [220 CR 374].) However, the United States Supreme Court’s decision in Schad v. Arizona (91) 501 US 624 [115 LEd2d 555; 110 SCt 1227], provides a basis for arguing that juror unanimity is required when felony murder and another alternate theory of first degree murder are presented to the jury. In Schad, the court analyzed the issue as a question of whether or not felony murder and premeditation/deliberation in Arizona are “separate offenses” or simply different means of committing the same offense. The court observed that if a state’s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, “we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law. [Citation.]” (Schad, 501 US at ___ [115 LEd2d at 568].)
In Arizona, as a matter of state law, premeditation and the commission of a felony are not independent elements of the crime but rather are means of satisfying a single mens rea element. Hence, because the state legislature’s definition of the elements of the offense is “usually dispositive” and, because there is no due process violation in so defining the elements of first degree murder, Schad held that no constitutional requirement of juror unanimity was required. (The court did note, however, that increased verdict specificity would be desirable in such cases. (Schad, 501 US at ___ [115 LEd2d at 574].)
A different analysis should be applied in California because malice murder under PC 187 and felony murder under PC 189 are not the “same crimes.” (People v. Dillon (83) 34 C3d 441, 476, fn 2, 3 [194 CR 390]; but see People v. Carpenter (97) 15 C4th 312, 394-95 [63 CR2d 1].) Malice is an element of murder under PC 187 but not an element under PC 189. Hence, PC 187 and PC 189 describe two separate crimes rather than different means to the commission of the same crime. (See also FORECITE F 8.21 n5, discussing Sheppard v. Rees (9th Cir. 1989) 909 F2d 1234.) Note that the California cases which have declined to follow Sheppard have not discussed the impact of Dillon. (See e.g., People v. McPeters (92) 2 C4th 1148, 1185 [9 CR2d 834] [unanimity argument rejected without meaningful consideration of Dillon/Schad argument].)
In sum, the analysis in Schad, while not requiring unanimity in states such as Arizona where felony murder is not a distinct crime, does require unanimity in California in light of Dillon’s construction of the statutory elements.
In People v. Edwards (91) 54 C3d 787, 824 [1 CR2d 696] and People v. Beardslee (91) 53 C3d 68, 92 [279 CR 276], the court recited the Milan rule that no unanimity as to the theory of first degree murder is required. However, neither Beardslee nor Edwards were felony murder cases. Instead, the issue addressed was whether the jury has to unanimously agree which acts support a single theory of first degree murder. Therefore, neither Beardslee nor Edwards are authority for rejection of the Dillon/Schad argument advanced herein. (See also People v. Pride (92) 3 C4th 195, 249 [10 CR2d 636] [restating rule without analysis of Dillon].)
In Sullivan v. Borg (9th Cir. 1993) 1 F3d 926, 928-29, the court rejected an argument that felony murder has been interpreted to be a separate crime in California and, therefore, the court concluded that juror unanimity is not required as between felony murder and other theories of 1st degree murder.
PRACTICE NOTE: Right To Juror Unanimity Instruction As To Felony Murder Or Alternatively Instruction That Felony Murder Requires A Finding Of Malice: The California Supreme Court has taken conceptually contrary positions regarding the questions of whether jury unanimity applies to felony murder and whether felony murder requires malice. In light of these contrary positions, the following is a suggested format for raising the constitutional rights which are implicated by these issues. (But see People v. Carpenter (97) 15 C4th 312, 394-95 [63 CR2d 1].)
In People v. Dillon (83) 34 C3d 441, 474-76 [194 CR 390], the California Supreme Court held that malice is not an element of felony murder. The court reached this decision based on its conclusion that the felony murder rule as a matter of “substantive law” eliminates malice as an element of the crime of felony murder. (Ibid.) Hence, according to Dillon, felony murder is not the “same crime” as malice murder because malice is not an element of felony murder. (Id. at 476 fn 23; see also People v. Saille (91) 54 C3d 1103, 1116 [2 CR2d 364] [recognizing that Dillon deleted malice as an element of “the crime of felony murder”].)
Under this construction of the felony murder statute, the federal constitutional rights to trial by jury and due process (6th and 14th Amendments) require juror unanimity upon felony murder. In Schad v. Arizona (91) 501 US 624 [115 LEd2d 555; 110 SCt 1227], the Supreme Court held that juror unanimity is required if felony murder has been construed as a separate offense with independent elements. (115 LEd2d 568-69.) Because Dillon’s construction of the felony murder statute holds that felony murder is a separate offense in California with independent elements, unanimity as to felony murder is required under Dillon.
However, the California Supreme Court has held that unanimity is not required as to felony murder under Schad. (People v. McPeters (92) 2 C4th 1148, 1185 [9 CR2d 834].) Actually McPeters did not purport to discuss the Schad analysis presented herein, but merely cited Schad in support of its conclusion that the right to a unanimous verdict as to felony murder is “contrary to established law ….”
Hence, McPeters suggests that, contrary to Dillon, the California Supreme Court is no longer construing felony murder as a separate offense with independent elements. (See also, People v. Johnson (91) 233 CA3d 425, 453-57 [284 CR 579] [felony murder and malice murder are not “two kinds of first degree murder”].) But if the Dillon construction is no longer valid and felony murder is not a separate substantive crime, then the felony murder rule must be construed as imputing the element of malice rather than creating a separate crime. Therefore, defendant alternatively requests that the jury be instructed that it must find malice as an element of felony murder. The failure to instruct upon malice would create an improper conclusive presumption of malice in violation of the defendant’s federal constitutional rights to trial by jury, due process and equal protection (6th and 14th Amendments.) (People v. Figueroa (86) 41 C3d 714, 724-33 [224 CR 719]; Carella v. California (89) 491 US 263, 265 [105 LEd2d 218; 109 SCt 2419].)
[Research Note: See FORECITE BIBLIO 17.01]
F 17.01 n6 Juror Unanimity: Possession Offenses.
In possession offenses, CJ 17.01 must be given when the possession is based upon two or more individual units of contraband reasonably distinguishable by separation in time and/or space (see People v. Castaneda (97) 55 CA4th 1067, 1070-71 [64 CR2d 395] [failure to give CJ 17.01 prejudicial where conviction could have been based upon two separate possessions of heroin]; see also People v. Wolfe (2003) 114 CA4th 177 [trial court erred by failing to give a unanimity instruction; noting split of opinion regarding the harmless error standard applicable to this error and holding that the beyond-a-reasonable-doubt standard of Chapman v. California (67) 386 US 18 [17 LEd2d 705; 87 SCt 824] applies]; People v. King (91) 231 CA3d 493, 499-502 [282 CR 402]; see also People v. Crawford (82) 131 CA3d 591, 599 [182 CR 536]; Hill v. State (98) 712 So.2d 463 [double jeopardy precludes more than one conviction for possession, at the same time, of multiple firearms by a convicted felon]; but see conflicting decisions cited in Hill).
[Briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-622.]
[Research Note: See FORECITE BIBLIO 17.01]
F 17.01 n7 Juror Unanimity: Applicability To Enhancements.
The same reasoning which requires instruction upon juror unanimity per CJ 17.01 with respect to substantive offenses also requires the instruction with regard to enhancements. (People v. Robbins (89) 209 CA3d 261, 264-65 [257 CR 60].)
Therefore, CJ 17.01 should be given whenever there is evidence of more than one act which could constitute the charged enhancement. (Robbins at 264-65; compare People v. Muniz (89) 213 CA3d 1508, 1518 [262 CR 743], holding that CJ 17.01 is not required where “the evidence was not such as to allow reasonable jurors to disagree [as to which act constituted the enhancement].” Because of this holding, the Muniz court declined to address the attorney general’s argument that CJ 17.01 should not apply to enhancements. (Muniz 213 CA3d at 1519, fn 6.)
In People v. Shell UNPUBLISHED (A055632), the court held that the requirements of juror unanimity apply to an arming enhancement. The court relied upon People v. Crawford (82) 131 CA3d 591, 598 [182 CR 536] which held that juror unanimity was required when the defendant was charged with the substantive crime of possession of a firearm by an ex-felon. The Shell court concluded that under Crawford the defendant is entitled to a unanimity instruction with respect to an arming enhancement and the fact that Crawford involved a substantive offense rather than an arming enhancement is of no consequence. (See also People v. Rocha (96) 48 CA4th 1060, 1070-71 [56 CR2d 212] [Court assumes that unanimity applies to act upon which arming enhancement (PC 12022(b)) is predicated but concludes that no instruction is required where one act was conceded making the other mere surplusage].)
[FORECITE subscribers may obtain a copy of the Shell opinion. Ask for Opinion Bank # O-124.]
[Research Note: See FORECITE BIBLIO 17.01]
F 17.01 n8 Juror Unanimity: No Agreement Necessary As To Act Constituting Lying In Wait.
People v. Edwards (91) 54 C3d 787, 824 [1 CR2d 696].
[Research Note: See FORECITE BIBLIO 17.01]
F 17.01 n9 Juror Unanimity: Jury Unanimity As To Theory Of Theft.
In People v. McLemore (94) 27 CA4th 601, 605-06 [32 CR2d 687], it was held that unanimity is not required as to whether property was obtained by trick or intimidation of store employees.
[Research Note: See FORECITE BIBLIO 17.01.]
F 17.01 n10 Juror Unanimity: Perjury.
See discussion at FORECITE F 7.20 n4.
[Research Note: See FORECITE BIBLIO 17.01]
F 17.01 n11 Juror Unanimity: Resident Child Molester: No Unanimity.
There is no constitutional impairment to legislative elimination of juror unanimity as to which of 3 acts a jury relies on to convict resident child molester per PC 288.5. (People v. Higgins (92) 9 CA4th 294, 301-04 [11 CR2d 694].) (See FORECITE F 4.71.5a for modified instruction and FORECITE notes in light of Supreme Court’s decision in People v. Jones (90) 51 C3d 294, 321-22 [270 CR 611], regarding “generic testimony.”)
[Research Note: See FORECITE BIBLIO 17.01]
F 17.01 n12 Juror Unanimity: Continuous Course-of-Conduct Crimes.
There are two branches to the continuing course of conduct exception to the juror unanimity requirement. The first stems from crimes which by their statutory definition contemplate a series of acts over a period of time. (People v. Diedrich (82) 31 C3d 263, 282 [182 CR 354].) Examples of this category of crime are the resident child molester under PC 288.5 (People v. Avina (93) 14 CA4th 1303, 1310 [18 CR2d 511]); pandering (People v. White (79) 89 CA3d 143, 151 [152 CR 312]); child abuse (People v. Ewing (77) 72 CA3d 714, 717 [140 CR 299]) and spousal battery (People v. Thompson (84) 160 CA3d 220, 225-26 [206 CR 516]; see also People v. Haynes (98) 61 CA4th 1282, 1296 [72 CR2d 143] [continuous conduct exception applied where two encounters were just minutes and blocks apart and involved the same property; the acts were part of a single objective of getting all the victim’s cash].)
The other branch of the continuing course of conduct exception occurs where the acts are committed so closely in time that they are part of one and the same transaction and, hence, constitute one offense. (See Diedrich, 31 C3d at 282.) However, for this exception to apply, the defendant must tender the same defense or defenses to each act so there is no reasonable basis for the jury to distinguish between them. (People v. Crandell (88) 46 C3d 833, 875 [251 CR 227].) [The opinion in People v. Gonzales UNPUBLISHED (1993, A058921), which discusses the continuing course of conduct issue is available to FORECITE subscribers. Ask for Opinion Bank # O-177.]
However, “when the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed …” (People v. Gordon (85) 165 CA3d 839, 853 [212 CR 174]; see also People v. Thompson (95) 36 CA4th 843, 850 [42 CR2d 798]. Hence, if discreet criminal acts (i.e., acts which are independently unlawful) are committed unanimity should be required even if the acts are over a continuous period of time. [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-621.]
People v. Avina (93) 14 CA4th 1303, 1309 [18 CR2d 511] provides a listing of continuous-course-of-conduct crimes. Also note that Avina held that such crimes are not constitutionally infirm. (Alvina 14 CA4th at 1312.) However, since this is a federal constitutional issue, it may be raised on federal habeas or certiorari by requesting CJ 17.01 upon 14th Amendment due process grounds. (See generally, FORECITE PG VII(C).)
(See FORECITE F 17.01 n37.)
Continuing Course Of Conduct: Defined. A continuing course of conduct has been held to exist where the wrongful acts were “successive, compounding, and interrelated.“ (People v. Rae (2002) 102 CA4th 116, 123 [125 CR2d 312]; see also People v. Sanchez (2001) 94 CA4th 622, 632 [114 CR2d 437]; People v. Dieguez (2001) 89 CA4th 266, 275 [107 CR2d 160]; People v. Avina (1993) 14 CA4th 1303, 1311 [18 CR2d 511].)
[Research Note: See FORECITE BIBLIO 17.01]
F 17.01 n13 Juror Unanimity: Single Assault Based On Multiple Acts.
PC 245(a)(1) requires either that the assault be committed by use of a deadly weapon or by means of force likely to produce great bodily injury. When more than one act is relied upon by the prosecution to meet this statutory requirement, the jury should be instructed to agree upon a single act. See Brief Bank # B-577 for briefing on this issue.]
In an unpublished case the court of appeal reversed for failure to give a requested unanimity instruction where the DA alleged assault based upon either hitting the victim with a brick or with a cane. The court concluded that the “continuous course of conduct” exception did not apply because the defendant did not offer “‘essentially the same defense to each of the acts, and there [was] [a] reasonable basis for the jury to distinguish between them.’ (People v. Stankewitz (90) 51 C3d 72, 100 [270 CR 817].)” In Johnson the defendant allegedly hit the victim first with a brick, then a cane, and was charged with assault by means of force likely to commit GBI (PC 245(a)(1)) and assault with a deadly weapon (PC 245(a)(1)). The defendant claimed that he never hit the victim with the brick and had only grabbed the cane to prevent the victim from hitting him with it. There was eyewitness corroboration that the defendant hit the victim with the cane but not the brick. The court of appeal concluded that because there was a reasonable basis on which the jury could have treated the cane assault differently from the brick assault, and failure to instruct was prejudicial as to the assault with a deadly weapon charge. [A copy of the unpublished opinion in Johnson (3/8/97, A072990) is available to FORECITE Subscribers. Ask for Opinion Bank # O-232.]
[Research Note: See FORECITE BIBLIO 17.01]
F 17.01 n14Juror Unanimity: Civil Forfeiture Proceeding.
Because a forfeiture proceeding (HS 11470) is a civil matter, the agreement of only 9 out of 12 jurors is sufficient to return a verdict. Thus, the normal considerations of juror unanimity do not apply and the court is not obligated to instruct the jury that they must unanimously agree upon the act committed by the defendant. (People v. Washington (90) 220 CA3d 912, 916 [269 CR 668].)
However, without any instruction on the issue of multiple acts, there is no assurance that all nine jurors agreed on a single act committed by the defendant. Such a result would lighten the state of its (albeit civil) burden and deprive the defendant of property without due process of law. (U.S. Const., 14th Amendment; Calif. Const., Art. I, § 7.) Therefore, the jury should be instructed that all nine jurors who vote for the verdict must agree upon the act or acts upon which the forfeiture is predicated.
Due to the civil nature of the proceeding, such an instruction would have to be requested. (Washington 220 CA3d at 917.)
[Research Note: See FORECITE BIBLIO 17.01]
F 17.01 n15 Juror Unanimity As To Predicate Acts.
Statutes such as PC 186.22 (criminal street gangs) require the jury to find a specific number of predicate offenses before finding the defendant guilty of the charge. (See also PC 646.9 [stalking].)
In People v. Funes (94) 23 CA4th 1506, 1525 [28 CR2d 758], the Court of Appeal held that there is no unanimity requirement as to which two of several possible predicate offenses established the pattern of criminal gang activity for establishment of a criminal street gang per PC 186.22(e)(f). This holding applies to prosecutions under the substantive gang statute (PC 186.22(a)) and the enhancement statute (PC 186.22(b)(1)). In reaching this conclusion, the Court of Appeal relied on the continuous course of conduct exception to the unanimity requirement. The court failed to follow the federal rule (e.g., U.S. v. Echeverri (3rd Cir. 1988) 854 F2d 638, 642-43), which requires juror unanimity as to the three predicate offenses which constitute a continuing criminal enterprise under a federal RICO charge. The Funes court rejected the federal rule because it is based upon U.S. v. Gipson (5th Cir. 1977) 553 F2d 453, 457-58, which requires that the jury agree on the principal factual elements underlying a specific offense. Rather, the court relied on “the more liberal” California rule which permits a jury to convict a defendant even if the jurors disagree about particular theories. (See People v. Davis (92) 8 CA4th 28, 35 [10 CR2d 381].)
However, the problem with this analysis is that the predicate prior offenses are not different theories of guilt, but rather are essential factual prerequisites to a finding of guilt. (See Richardson v. U.S. (99) 526 US 813 [143 LEd2d 985; 119 SCt 1707].) Hence, the analysis in People v. Davis (92) 8 CA4th 28 [10 CR2d 381], upon which Funes relied, is inapposite. Even if there is no requirement that the jury unanimously agree upon a particular theory of guilt, federal due process (14th Amendment), as well as the state constitution (Art. I, § 16), requires that the jury unanimously agree upon the acts constituting the offense. (See e.g., People v. Deletto (83) 147 CA3d 458 [195 CR 233]; People v. Brown (96) 42 CA4th 1493 [50 CR2d 407]; People v. Thompson (95) 36 CA4th 843 [42 CR2d 798].)
As the U.S. Supreme Court explained in Richardson, lack of unanimity as to uncharged predicate acts for which no prior conviction has been obtained “imposes punishment on a defendant for the underlying crimes without any factfinder having found that the defendant committed those crimes.” (Richardson, 119 SCt at 1712.)
In other words, because unanimity would be required if the offenses were separately charged, that requirement cannot be constitutionally eliminated simply by charging those same offenses as a predicate to liability under another statute. Hence, it would violate the defendant’s federal constitutional rights to trial by jury and due process (5th, 6th and 14th Amendments) to allow the jury to find the existence of an essential element of a criminal street gang offense or enhancement without juror agreement as to which prior crimes were committed. “[S]ubstantial agreement on a discrete set of actions is essential to ensure that the defendant is guilty beyond a reasonable doubt of some specific illegal conduct. [Citation.]” (U.S. v. Edmonds (3rd Cir. 1996) 80 F3d 810, 819; see also Eric S. Miller, Compound/Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts (1995) 104 Yale L.J. 2277 (1995).) [See Brief Bank # B-890 for briefing on this issue.]
(See FORECITE F 17.02 n26.)
F 17.01 n16 Juror Unanimity Required By California Constitution.
The juror unanimity doctrine in California is founded upon both federal due process and a long-standing construction of the state constitutional right to a unanimous jury verdict. (Cal. Const., Art. I, § 16.) (People v. Mickle (91) 54 C3d 140, 178 [284 CR 511]; see also People v. Jones (90) 51 C3d 294, 305 [270 CR 611]; People v. Wheeler (78) 22 C3d 258, 265 [148 CR2d 890]; People v. Madden (81) 116 CA3d 212, 219 [171 CR 897]; People v. McNeill (80) 112 CA3d 330, 335 [169 CR 313].) Hence, even if Schad is construed to limit the federal due process right, the state constitutional right to juror unanimity should remain viable.
[Research Note: See FORECITE BIBLIO 17.01]
F 17.01 n17 Juror Unanimity: Torture.
In People v. Jenkins (94) 29 CA4th 287, 299-300 [34 CR2d 483], the court held that the “continuous-course-of-conduct” exception to the juror unanimity rule is applicable to a charge of torture for acts committed over a period of time.
However, “when the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed …” (People v. Gordon (85) 165 CA3d 839, 853 [212 CR 174]; see also People v. Thompson (95) 36 CA4th 843, 850 [42 CR2d 798]. Hence, if discreet criminal acts are committed (i.e., acts which independently support the charge) unanimity should be required even if the acts are over a continuous period of time. [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-765.]
[Research Note: See FORECITE BIBLIO 17.01]
F 17.01 n18 Juror Unanimity: Which of Two Acts Constituted Battery.
(See FORECITE F 17.01 n13.)
[An unpublished opinion on this issue is available to FORECITE subscribers. Ask for Opinion Bank # O-177.]
[An unpublished opinion and briefing on the need for unanimity when the evidence shows multiple acts of spousal abuse per PC 273.5 is available to FORECITE subscribers. Ask for Opinion Bank # O-239 and Brief Bank # B-766.]
F 17.01 n19 Juror Unanimity: Standard Of Prejudice.
(See FORECITE PG X(C)(20).)
F 17.01 n20 Juror Unanimity: Theft Offenses.
Even if the defendant is charged with theft based upon a continuous course of conduct, there is still a need for juror unanimity as to the particular act of theft which the defendant committed. This is especially true when there is a basis for the jury to distinguish between the various acts in light of the evidence presented by the prosecution or the defense advanced by the defendant. (See People v. Thompson (95) 36 CA4th 843 [42 CR2d 798].)
F 17.01 n21 Juror Unanimity: Overt Acts In Conspiracy Prosecution.
(See FORECITE F 17.01 n30, F 17.01 n32, F 17.01 n33, F 17.01 n34.)
There are a number of situations where unanimity may be required notwithstanding Russo:
See FORECITE F 17.01 n30 [Conspiracy: Circumstance Where Unanimity As To Overt Acts May Be Required — Multiple Agreements];
See FORECITE F 17.01 n31 [Conspiracy: Circumstance Where Unanimity As To Overt Acts May Be Required — Statute Of Limitations];
See FORECITE F 17.01 n32 [Conspiracy: Circumstance Where Unanimity As To Overt Acts May Be Required — Withdrawal];
See FORECITE F 17.01 n33 [Conspiracy: Circumstance Where Unanimity As To Overt Acts May Be Required — When Some Overt Acts Were Committed Before Defendant Joined Conspiracy];
See FORECITE F 17.01 n34 [Conspiracy: Circumstance Where Unanimity As To Overt Acts May Be Required — When One Overt Act Was Committed After Conspiracy Terminated].
F 17.01 n22 Juror Unanimity As To Firearm/Weapon Possession Offenses.
Effective 1/1/96, the legislature overruled People v. Kirk (89) 211 CA3d 58, 60-66 [259 CR 44] and specifically permitted multiple conviction and/or enhancement based on the possession of multiple firearms/weapons, etc. at the same place and time. (PC 12001(k) [applying to PC 12021, PC 12021.1, PC 12025, PC 12070, PC 12072, PC 12073, PC 12078; PC 12101 and WI 8100, WI 8101, and WI 8103]; PC 12001(l) [applying to PC 12020].) Hence, in any such case where multiple firearms or weapons are involved but not separately charged, consideration should be given to whether a unanimity instruction is required in light of evidence that would permit the jury to disagree as to which firearm/weapon is the predicate for the charged offense. (See FORECITE F 17.01 n1, n2, n6, and n7 et al.) [Additional briefing and an unpublished opinion on these issues is available to FORECITE subscribers, ask for Brief Bank # B-622 and Opinion Bank # O-124.]
F 17.01 n23 Juror Unanimity As To Unlawful Act Which is Basis For Drunk Driving Or Vehicular Manslaughter Charge.
People v. Gary (87) 189 CA3d 1212, 1218 [235 CR 30], held that a unanimity instruction must be given when the defendant is charged with driving under the influence or vehicular manslaughter and the evidence shows several separate acts that could constitute the element of an act forbidden by law as required by the statute involved. (VC 23153; see also FORECITE F 12.60a.) However, People v. Leffel (88) 203 CA3d 575, 586 [249 CR 906] held that unanimity is not required when the multiple acts are alternative ways of proving a necessary element of the same offense rather than separate chargeable offenses. (See also, People v. Mitchell (86) 188 CA3d 216, 222 [232 CR 438].) People v. Durkin (88) 205 CA3d Supp. 9 [252 CR 735] concluded that the continuous course of conduct exception applied to the multiple driving acts under the circumstances of that case.
F 17.01 n24 Juror Unanimity As To Terrorist Threats.
People v. Melhado (98) 60 CA4th 1529 [70 CR2d 878] reversed a conviction for terrorist threats per PC 422 where the evidence presented multiple threats and the prosecutor’s election as to a specific threat was never communicated to the jury. The error was reversible because any of the threats could have been a violation of PC 422 and it could not be determined beyond a reasonable doubt that each juror agreed on a particular threat as the basis for the verdict.
F 17.01 n25 Juror Unanimity: Requirement Of Notice Before Submitting Multiple Acts To The Jury.
The preliminary hearing is the “touchstone of due process.” (People v. Jones (90) 51 C3d 294, 311 [270 CR 611]; see also People v. Lucas (97) 55 CA4th 721, 737 [64 CR2d 282]; People v. Butte (2004) 117 CA4th 956 [notice comes from the preliminary hearing].) Accordingly, instruction based upon an act not presented at the preliminary hearing is improper. (See People v. Burnett (99) 71 CA4th 151 [83 CR2d 629] [counsel ineffective for failure to object when case submitted to the jury on two acts, one of which was not presented at the preliminary hearing]; see also FORECITE PG VII(C)(11).)
F 17.01 n26 Unanimity As To Act Constituting Murder.
The courts have held in a variety of contexts that juror unanimity is not required as to “theories” of legal liability. (See People v. Milan (73) 9 C3d 185 [107 CR 68] [theories of first degree murder]; People v. Brown (95) 35 CA4th 708, 714 [41 CR2d 321] [theories of malice]; People v. Davis (92) 8 CA4th 28 [10 CR2d 381]; People v. Sutherland (93) 17 CA4th 602 [21 CR2d 752]; People v. Gonzales (95) 31 CA4th 1248, 1255 [37 CR2d 537].) Under this analysis unanimity is not required for multiple theories or acts upon which a “discrete criminal event” is predicated. However, a unanimity instruction is required where a single count is based on two or more “discrete criminal events.” (People v. Hernandez (95) 34 CA4th 73, 80 [40 CR2d 223].)
Accordingly, when the defendant is charged with a single offense and the prosecution presents evidence of several separate acts — any one of which could support conviction — then the jury must unanimously agree on the same act upon which the finding of guilt is based. (See People v. Alva (79) 90 CA3d 418, 424-426 [153 CR 644]; see also Richardson v. U.S. (99) 526 US 813 [143 LEd2d 985; 119 SCt 1707, 1712] [improper to impose punishment “on a defendant for the underlying crimes without any factfinder having found that the defendant committed those crimes”].) Otherwise, there is a danger that the defendant will be convicted of an offense where part of the jury might think one act has been proven and part might think another act proven. (People v. Creighton (76) 57 CA3d 314, 319 [129 CR 249]; People v. Gavin (71) 21 CA3d 408, 419 [98 CR 518].) Such a result violates the fundamental judicial principle that a defendant must not be found guilty unless the charged act has been proven beyond a reasonable doubt to the satisfaction of all twelve jurors. (People v. Diedrich (82) 31 C3d 263 [182 CR 354]; People v. Williams (1901) 133 C 165 [65 P 323]; People v. Castro (1901) 133 C 11 [65 P 13]; People v. Madden (81) 116 CA3d 212 [171 CR 897].)
For example, in People v. Dellinger (84) 163 CA3d 284 [209 CR 503], the prosecution presented multiple factual bases for a charge of murder. The court held that juror unanimity as to the actus reus was required:
“Characteristically, a defendant could have been charged with several different counts but was charged only once. [Citation.] Here there was only one offense and one victim but there were several hypotheses as to which act or acts caused Jaclyn’s death. As long as there are multiple acts presented to the jury which could constitute the charged offense, a defendant is entitled to an instruction on unanimity.” (Dellinger, 163 CA3d at 301.)
Because the failure to require juror unanimity has the effect of reversing or lightening the burden of proof,” it constitutes an infringement of the defendant’s constitutional rights to due process under the state and federal constitutions. (People v. Delletto (83) 147 CA3d 458, 472 [195 CR 233].)
The constitutional implications of a criminal conviction based upon acts which are not found by a majority of the jurors are momentous.
First, such a conviction violates the state and federal constitutional rights to trial by jury. (See FORECITE F 17.01 n4.) The failure to instruct the jury upon unanimity in the appropriate case is clear error which “goes to the defendant’s fundamental right to a jury trial and due process.” (People v. Metheney (84) 154 CA3d 555, 563, fn 5 [201 CR 281].)
Second, lack of unanimity as to the act which constitutes the crime violates 14th Amendment federal due process principles. Agreement as to “just what a defendant did [is] a step preliminary to determining whether the defendant is guilty of the crime charged.” (U.S. v. Gipson (5th Cir. 1977) 553 F2d 453, 457-458; Richardson v. U.S. (99) 526 US 813 [143 LEd2d 985; 119 SCt 1707, 1711] [the federal constitution “itself limits a State’s power to define crimes in ways that would permit juries to convict while disagreeing about means, at least where that definition risks serious unfairness and lacks support in history or tradition]; United States v. Edmonds (3rd Cir. 1996) 80 F3d 810, 819.)
Third, lack of jury consensus upon the act committed by the defendant lightens the prosecution’s burden of proof and, thus, violates the defendant’s constitutional right to due process. (See People v. Delletto (83) 147 CA3d 458, 472 [195 CR 233].)
Fourth, arbitrary denial of the state constitutional right to juror unanimity would violate federal 14th Amendment due process. (Hicks v. Oklahoma (80) 447 US 343 [65 LEd2d 175; 100 SCt 2227]; see also FORECITE PG VII(C)(17).)
Hence, if there are several acts presented to the jury in a murder case which could constitute the charged offense, and there is a basis for juror divergence as to which act was committed, the jury must unanimously agree upon a single act.
[See Opinion # O-262 for the unpublished opinion finding prejudicial error for failure to require juror unanimity.]
NOTE: Regarding termination of a felony see FORECITE F 8.21 n6.
F 17.01 n27 Juror Unanimity: Sexual Molestation (PC 288).
When the evidence reveals more than one possible act, failure to give CJ 17.01 is reversible error. (See also People v. Johnson UNPUBLISHED (A072557).) [See Brief Bank # B-872 for briefing on this issue. See Opinion Bank # O-273 for the Johnson opinion.]
F 17.01 n28 Juror Unanimity: Worker’s Compensation Fraud (Ins C 1871.4).
(See People v. Dieguez (2001) 89 CA4th 266, 274-76 [107 CR2d 160] [unanimity instruction not required where charge of fraudulent worker’s compensation claim was based on multiple statements made to physician regarding single alleged incident].)
F 17.01 n29 No Unanimity As To Predicate Intent For Burglary.
(See People v. Failla (66) 64 C2d 560 [51 CR 103]; see also People v. Griffin (2001) 90 CA4th 741, 750-52 [109 CR2d 273]; but see FORECITE F 14.59 n3 [prosecution must provide notice of which intent it seeks to prove].)
F 17.01 n30 Conspiracy: Unanimity As To Overt Acts — Multiple Agreements.
People v. Russo (2001) 25 C4th 1124, 1134-37 [108 CR2d 436] held that jury unanimity is not required as to the overt act element of conspiracy. (PC 182.) Nevertheless, unanimity may be required if the evidence suggests that there were multiple agreements.
F 17.01 n31 Conspiracy: Unanimity As To Overt Acts — Statute Of Limitations.
People v. Russo (2001) 25 C4th 1124, 1134-37 [108 CR2d 436] held that jury unanimity is not required as to the overt act element of conspiracy. (PC 182.) Nevertheless, unanimity may be required when there is an issue concerning the statute of limitations.
F 17.01 n32 Conspiracy: Unanimity As To Overt Acts — Withdrawal.
People v. Russo (2001) 25 C4th 1124, 1134-37 [108 CR2d 436] held that jury unanimity is not required as to the overt act element of conspiracy. (PC 182.) Nevertheless, unanimity may be required when there is an issue concerning withdrawal. (See also FORECITE F 6.20 n1.)
F 17.01 n33 Conspiracy: Unanimity As To Overt Acts — When Some Overt Acts Were Committed Before Defendant Joined Conspiracy.
People v. Russo (2001) 25 C4th 1124, 1134-37 [108 CR2d 436] held that jury unanimity is not required as to the overt act element of conspiracy. (PC 182.) Nevertheless, unanimity may be required when some overt acts were committed before the defendant joined the conspiracy. (See also FORECITE F 6.10g.)
F 17.01 n34 Conspiracy: Unanimity As To Overt Acts — When One Overt Act Was Committed After Conspiracy Terminated.
People v. Russo (2001) 25 C4th 1124, 1134-37 [108 CR2d 436] held that jury unanimity is not required as to the overt act element of conspiracy. (PC 182.) Nevertheless, unanimity may be required when an overt act was committed after the conspiracy terminated. (See also FORECITE F 6.21a and F 6.10a.)
F 17.01 n35 Importance Of Giving Unanimity Instruction.
ALERT: The importance of giving a juror unanimity instruction (e.g., CJ 17.01) was emphasized by the concurring opinion of Justice Sims, which was subsequently deleted on January 9, 2002, in People v. Sanchez (2001) 94 CA4th 622 [114 CR2d 437].
CAVEAT: This concurring opinion was subsequently deleted from the opinion and, therefore, is not citable. It is included here in FORECITE to illustrate the importance of CJ 17.01 and juror unanimity issues.
“I concur in the majority opinion.
I write separately to say that I am completely dumbfounded by the continuing failure of our trial courts to give the standard jury instruction requiring jury unanimity. (CALJIC No. 17.01.)
Each year, the California Center for Judicial Education and Research (CJER) publishes a valuable handbook: “Mandatory Criminal Jury Instructions Handbook.” Each year, that handbook contains a section entitled “Selected Common Instructional Errors.” (See, e.g. CJER Mandatory Criminal Jury Instructions Handbook (CJER 12th ed. 2003) Chapter 3.) Each year — year after year — the failure to give CALJIC No. 17.01 ranks near the top of the most common errors. (Id. at § 3.8, p. 107.)
I do not understand what it is about CALJIC No. 17.01 that causes trial judges not to give it. It is not arcane. It is not long. It does not carry bacteria. Its language is fairly straightforward, and jurors appear to understand it.
To be sure, there are some cases in which CALJIC No. 17.01 need not be given. These are summarized in the CJER handbook at § 3.10 and § 3.11. But these cases represent relatively rare exceptions. In most criminal cases, evidence of more than one act constituting a charged offense is adduced, and the instruction should be given.
So here is my fervent and frustrated request to trial judges with respect to CALJIC No. 17.01: Give the instruction unless, after having thought about it, there is good reason not to, PLEASE!
Thank you. SIMS, J.”
F 17.01 n36 Jury Unanimity: Joining Completed Offense And Attempt In Same Count As Duplicitous.
An indictment is duplicitous where a single count joins two or more distinct and separate offenses. (See U.S. v. Ramirez-Martinez (9th Cir. 2001) 273 F3d 903, 913.) “One vice of duplicity is that a jury may find a defendant guilty on a count without having reached a unanimous verdict on the commission of a particular offense.” (U.S. v. UCO Oil Co. (9th Cir. 1976) 546 F2d 833, 835.) Hence, because an attempt to commit an offense and the completed offense are two different offenses with different requisite elements, it is duplicitous to include both in a single count. (See Ramirez-Martinez, supra, at 914-15.) In such situations, either the prosecution must elect between the charges in the offending count or the court must provide an instruction requiring all members of the jury to agree as to which of the distinct charges the defendant actually committed. (Ibid.)
When this is not done reversal may be required. (Ibid.)
F 17.01 n37 Continuing Course Of Conduct: Whether Jury Should Be Informed That Unanimity Is Not Required.
Even though juror unanimity is not required as to continuing course of conduct offenses, it is error to expressly instruct the jurors that they need not be unanimous. (People v. Napoles (2002) 104 CA4th 108 [127 CR2d 777]; see also generally FORECITE 17.01 n38.)
F 17.01 n38 Child Abuse May Be Charged As Continuing Course Of Conduct Or Single Act.
(See People v. Napoles (2002) 104 CA4th 108, 116 [127 CR2d 777].)
Child abuse is not invariably charged as a course of conduct offense; one act or omission constituting abuse may be sufficient for conviction in which case unanimity would be required. People v. Russo (2001) 25 C4th 1124 [108 CR2d 436] is instructive in determining whether a unanimity instruction is required. Russo concluded that the purpose of the unanimity instruction governs its use. “The jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed [the defendant] guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal 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.” (People v. Russo, supra, 25 C4th at pp. 1134-1135.)
F 17.01 n39 Juror Unanimity: Federal Constitution Applies To Crime As Defined By The State — Proof Beyond A Reasonable Doubt Required (1) As To “One Criminal Event” (2) That Convinces All Twelve Jurors.
“The applicability of the reasonable-doubt standard … has always been dependent on how a State defines the offense that is charged in any given case ….” (Patterson v. New York (77) 432 US 197, 211, fn. 12 [53 LEd 2d 281; 97 SCt 2319].) Like the requirement of jury unanimity, the definition of a crime is a matter of state law (subject to federal constitutional limits). (Schad v. Arizona (91) 501 US 624, 640 [115 LEd 2d 555; 111 SCt 2491] [plur. opn.].) “However, once state law has defined what constitutes a single instance of a crime–the unit of prosecution– the federal Constitution requires proof beyond a reasonable doubt that the defendant committed that crime.” (People v. Wolfe (2003) 114 CA4th 177, 186.)
“When the trial court erroneously fails to give a unanimity instruction, it allows a conviction even if all 12 jurors (as required by state law) are not convinced that the defendant is guilty of any one criminal event (as defined by state law).” (People v. Wolfe (2003) 114 CA4th 177-188 This lowers the prosecution’s burden of proof and therefore violates federal constitutional law. (See Rose v. Clark (86) 478 US 570, 579 [92 LEd2d 460; 106 SCt 3101; Francis v. Franklin (85) 471 US 307, 326 [85 LEd2d 344; 105 SCt 1965]; Sandstrom v. Montana (79) 442 US 510, 521 [61 LEd2d 39; 99 SCT 2450].)
See also FORECITE F 17.01 n4.
F 17.01 n40 Juror Unanimity: Stalking (PC 646.9(a)).
See People v. Zavala (2005) 130 CA4th 758 [stalking—harassment element and unanimity: no unanimity instruction required because stalking is a continuous-course-of-conduct offense].
F 17.01a
Motions and Proposed Forms for Unanimity Instruction and Special Findings
[See generally, FORECITE PG VIII]
*Add to CJ 17.01:
CAVEAT: Requesting a special finding may pose some risks, such as:
1. If the court of appeal finds error in refusing, the unanimity instruction the special finding could cure that error by showing that the jury actually did unanimously agree.
2. If the erroneous theory which is submitted to the jury is a legal rather than a factual theory, the special findings could aid the prosecution in meeting its burden of showing that the jury did not rely on the erroneous theory. (See People v. Webster (91) 54 C3d 411, 447 [285 CR 31].)
__________ COURT OF CALIFORNIA
COUNTY OF __________
PEOPLE OF THE STATE OF NO. _________
CALIFORNIA,
Plaintiff,
vs. MOTION FOR UNANIMITY
INSTRUCTION AND SPECIAL
FINDINGS AND SUPPORTING
POINTS AND AUTHORITIES
Defendant(s).
_____________________________________/
Motion For Unanimity Instruction And Special Findings
Defendant __________ requests that the jury be instructed per CJ 17.01 that it must unanimously agree as to __________ [insert theories and/or acts for which unanimity instruction is requested]. The failure of the jury to agree upon the act committed implicates federal constitutional due process (14th Amendment) by lessening the prosecution’s burden of proof. (See People v. Melendez (90) 224 CA3d 1420, 1433 [274 CR 599]; People v. Deletto (83) 147 CA3d 458, 572 [195 CR 233]; but see People v. Hernandez (95) 34 CA4th 73 [40 CR2d 223].)
Defendant further requests that the jury be given a “special findings” form requiring it to state which [act] [theory] it relied on to reach its verdict.
Points and Authorities:
People v. Guiton (93) 4 C4th 1116, 1128-29 [17 CR2d 365] imposes an appellate burden upon the defendant to show juror reliance upon an incorrect factual theory. Without a special verdict the defendant will have no realistic opportunity to meet this burden since the appellate record will likely be inadequate and post-verdict inquiry into the jurors’ mental process is precluded by EC 1150. Therefore, fundamental fairness and due process as guaranteed by the state and federal constitutions (14th Amendment) necessitate the special findings.
Special findings may accompany a general verdict “so long as they do not interfere with the jury’s deliberative process.” (People v. Webster (91) 54 C3d 411, 447 [285 CR 31]; see also People v. Farmer (89) 47 C3d 888, 920 [254 CR 508].) (See also People v. Mickle (91) 54 C3d 140, 178 fn 21 [284 CR 511] [verdict forms should not allow jurors leeway in the wording of special findings]; People v. Boyajian (91) 228 CA3d 771, 774-75 [279 CR 359].)
Rule 230 provides the procedure for requesting special findings as follows:
Whenever a party desires special findings by a jury, he shall, before argument, unless otherwise ordered, present to the judge in writing the issues or questions of fact upon which such findings are requested, in proper form for submission to the jury and serve copies upon all other parties.
Dated: __________ Respectfully submitted,
_____________________________
__________ COURT OF CALIFORNIA
COUNTY OF __________
PEOPLE OF THE STATE OF NO. _________
CALIFORNIA,
Plaintiff,
vs. SPECIAL JURY FINDINGS
[UNAMIMITY INSTRUCTION
GIVEN]
Defendant(s).
_____________________________________/
We, the jury, having found defendant __________ guilty of __________ in Count _____, make the following special findings:
Did defendant _______________________________ [insert act or theory]?
Found True: __________
Not Found True: __________
Did defendant _______________________ [insert alternative act or theory]?
Found True: __________
Not Found True: __________
Date: __________ Signed: ____________________________
Time: __________ Print Name: _______________________
__________ COURT OF CALIFORNIA
COUNTY OF __________
PEOPLE OF THE STATE OF NO. _________
CALIFORNIA,
Plaintiff,
vs. SPECIAL JURY FINDINGS
[UNAMIMITY INSTRUCTION
NOT GIVEN]
Defendant(s).
_____________________________________/
We, the jury, having found defendant __________ guilty of __________ in Count _____, make the following special findings:
Did defendant ____________________________________
[insert act or theory]?
Found True: __________ (How many jurors)
Found Not True: __________ (How many jurors)
Did defendant ____________________________________
[insert alternative act or theory]?
Found True: __________ (How many jurors)
Found Not True: __________ (How many jurors)
Date: __________ Signed: ____________________________
Time: __________ Print Name: ________________________
F 17.01b
Juror Unanimity: No inference That
Prosecution Has Proven Criminal Act
*Modify 2nd sentence of CJ 17.01 to provide as follows: [added language is capitalized; deleted language is between <<>>]:
The prosecution has introduced evidence <<tending to prove>> FOR THE PURPOSE OF SHOWING that there is more than one [act] [or] [omission] upon which a conviction [on Count _____] may be based.
Points and Authorities
In People v. Owens (94) 27 CA4th 1155, 1158 [33 CR2d 354], the Court of Appeal held that an improper inference is suggested by an instruction which states that evidence has been presented “tending to prove” a particular fact. Instead, the “tending to prove” language should be replaced with the phrase “for the purpose of showing.” (Ibid.)
F 17.01c
Juror Unanimity: Foundational Facts
*Add to CJ 17.01:
You have been instructed that the evidence of __________ [insert evidence dependent on foundational fact] may not be considered for any purpose unless you first find that the following foundational fact(s) has (have) been proven by a preponderance of the evidence: __________ [insert foundational fact(s); see FORECITE F 2.001a.]
However, it is not necessary for all jurors to unanimously agree that the foundational fact(s) have been proven. Any juror who finds that the preliminary fact(s) to be proven may consider the evidence of __________ . Any juror who does not find the preliminary fact(s) to be proven may not consider the evidence of __________ for any purpose.
Points and Authorities
The California Supreme Court has held that juror unanimity is not required as to foundational evidentiary matters. (See People v. Miranda (87) 44 C3d 57, 99 [241 CR 594]; see also, People v. Hamilton (88) 46 C3d 123, 145 [249 CR 320], but see NOTES below.) Therefore, when the jury is instructed upon foundational evidentiary matters pursuant to EC 403, the jury should be instructed that individual jurors who believe that the foundational fact has been proven may consider the evidence while other jurors who do not believe that it has been proven may not consider the evidence. (See e.g., CJ 2.50.1 [jury may not consider other crimes evidence unless proven by a preponderance of the evidence].)
NOTES
Federal Constitutional Issues Regarding Unanimity As To Preliminary Facts: The California Supreme Court’s holding that juror unanimity is not required as to preliminary facts may implicate the defendant’s federal constitutional rights to due process and trial by jury (U.S. Const 6th and 14th Amendments).
“In California, jury unanimity is required in criminal cases. Presumably, then, jury unanimity is also required in finding preliminary facts in such cases. In California, as elsewhere, jurors can return a guilty verdict only if they find the accused guilty beyond a reasonable doubt. Presumably, that standard applies to preliminary facts that are also elements of the offense. But the standard may apply to other preliminary facts. At least where circumstantial evidence has been received, jurors are told that each fact which is essential to complete a set of circumstances necessary to establish guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt. [Footnotes omitted.]” (Mendez, California Evidence, West Publishing (1993) § 17.08 p 344; see also FORECITE F 2.50d [recognizing conflict between proof of preliminary facts under preponderance standard and requirement that all essential facts be proven beyond a reasonable doubt].)
F 17.01d
Unanimity As To Objective Of Conspiracy
*Add to CJ 17.01:
ALTERNATIVE # 1:
The indictment charges a conspiracy to commit [two] [three, etc.] separate crimes or offenses. It is not necessary for the Government to prove a conspiracy to commit [both] [all] of those offenses. It would be sufficient if the Government proves, beyond a reasonable doubt, a conspiracy to commit one of those offenses; but, in that event, in order to return a verdict of guilty, you must unanimously agree upon which of the [two] [three, etc.] offenses was the subject of the conspiracy. If you cannot agree in that manner, you must find the defendant not guilty. [In this case, you must decide which of the controlled substances, if any, [each] defendant conspired to [manufacture] [distribute] [possess with intent to distribute] and record your unanimous verdict on the form provided.]
[Source: 8TH CIRCUIT MODEL JURY INSTRUCTIONS – CRIMINAL 5.06F [Conspiracy: Multiple Offenses] (2000).]
ALTERNATIVE # 2:
You must unanimously agree as to at least one objective which the alleged conspirators agreed to accomplish. However, the prosecution is not required to prove that the defendant agreed to accomplish all of the objectives alleged.
[See U.S. v. Castro (9th Cir.1989) 887 F2d 988, 993; cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.93, comment [Conspiracy: Basic Instruction] p. 519 (Bar Association of the District of Columbia, 4th ed. 1993).]
Points and Authorities
People v. Vargas (2001) 91 CA4th 506, 556-562 [110 CR2d 210] concluded that because the agreement is the conspiracy, unanimity as to the object of the agreement is not necessary. However, this opinion fails to recognize that the intent and object of the agreement are essential components of the agreement itself. Without a specification of the intent and object of the conspiracy, there can be no agreement. Hence, an agreement to commit several different offenses may be viewed by the jury as separate individual agreements to commit each individual offense. Accordingly, unanimity should be required.
Indeed, Vargas conflicts with decisions from other jurisdictions which hold that when a single count contemplates the commission of more than one underlying offense, the jury must determine, as an essential element of the crime of conspiracy, the particular underlying offense or offenses the defendant conspired to commit. (See State v. Toth (CT 1993) 618 A2d 536, 543-547; see also U.S. v. Ballard (5th Cir. 1981) 663 F2d 534, 544 [jury must reach unanimous agreement on the same object offense for a conspiracy].)
Courts generally recommend, and in many instances require, a special unanimity instruction as to multiple object conspiracies. (U.S. v. Theodoropoulos (3d Cir.1989) 866 F2d 587, 597 [specific unanimity instruction, as to which of several weapons defendant used, was proper, even if not mandatory under Braverman v. U.S. (1942) 317 US 49, 54 [87 LEd 23; 63 SCt 99 in cocaine trafficking conspiracy trial].) “A unanimity instruction as to the particular objects of a charged conspiracy is appropriate ‘where it appears that a conviction might rest upon different jurors having found the existence of different facts ….'” (U.S. v. Castro (9th Cir.1989) 887 F2d 988, 993, (quoting) U.S. v. Frazin (9th Cir. 1986) 780 F2d 1461, 1468; Griffin v. U.S. (1991) 502 US 46, 60 [112 SCt 466; 116 LEd 371] (concurrence of Justice Blackmun) [urging use of special interrogatories to eliminate the risk of nonunanimity]; U.S. v. Feldman (9th Cir.1988) 853 F2d 648, 653; U.S. v. Sturman (7th Cir. 1995) 49 F3d 1275, 1282; U.S. v. Gordon (9th Cir. 1988) 844 F2d 1397, 1400-01.)
In sum, “the judge must instruct the jury that if a guilty verdict is returned the jurors must be unanimous as to which incident or incidents they find the defendant guilty.” (Hack v. U.S. (DC App. 1982) 445 A2d 634, 641; see also U.S. v. Alvarez (11th Cir. 1984) 735 F2d 461, 465-66 [conspiracy conviction reversed where conspiracy count alleged two objectives and no unanimity instruction was given]; U.S. v. Mangieri (DC Cir. 1982) 692 F2d 1270, 1281; Davis v. U.S. (DC App. 1982) 448 A2d 242; see McSorley, Portable Guide to Federal Conspiracy Law – Developing Strategies for Criminal and Civil Cases (ABA, 1996) Chapter 4, p. 47.)
This instruction may also be required by the federal constitutional rights to due process and trial by jury. (See FORECITE F 17.01 n4.)
F 17.01e
Special Unanimity Instruction For Continuous
Course Of Conduct Offenses
*Modify CJ 17.01 to provide as follows when appropriate:
The crime of __________ is a continuous course of conduct offense. This means that it is not necessary for all jurors to unanimously agree that the defendant committed any particular act.
However, the defendant may not be convicted of a continuous course of conduct offense based on the commission of an act or acts which do not amount to a continuous course of conduct. To prove a continuous course of conduct the prosecution must prove beyond a reasonable doubt that the conduct took place repeatedly throughout the charged period of time. Unless all jurors agree that the conduct took place repeatedly throughout the charged period of time, the defendant may not be convicted of __________.
Points and Authorities
As to continuing course of conduct offenses there is no requirement of juror unanimity as to specific acts because the offense is of a continuing nature and is committed by “a series of acts, which if individually considered, might not amount to a crime, but the cumulative effect is criminal.” (People v. Epps (81) 122 CA3d 691, 702 [176 CR 332]; see also People v. Sanchez (2001) 94 CA4th 622, 632-33 [114 CR2d 437].)
“The courts have looked to the statutory language to determine whether the legislature intended to punish individual acts or entire wrongful courses of conduct and have concluded that when the language of the statute focuses on the goal or affect of the offense, the offense is a continuing offense.” (People v. Sanchez (2001) 94 CA4th 622, 632 [114 CR2d 437]; see also People v. Salvato (91) 234 CA3d 872, 882-83 [285 CR 837] [dissuading a witness]; People v. Avina (93) 14 CA4th 1303, 1311 [18 CR2d 511] [residential child molestation].) Other courts have found a continuing course of conduct where the wrongful acts were successive, compounding, interrelated, and aimed at a single objective. (See People v. Dieguez (2001) 89 CA4th 266, 275 [107 CR2d 160].)
While there is no need for the jury to agree as to any particular act offered to prove a continuous course of conduct offense, the jury must unanimously agree that such a continuing course of conduct did occur and may not convict based on any single act or acts that do not constitute such a continuous course of conduct. As observed by the Sanchez court in discussing the offense of animal cruelty under PC 597(b): “The third theory under which the statute may be violated, failing to provide food, water and shelter, defines an offense that for purposes of our discussion here, is no different than the continuing offense of failing to provide food and shelter for a minor child. [Citations.] Certainly malnourishment, starvation and dehydration are the results of a continuous failure to provide adequate food and water rather than the failure to provide food and water on one occasion.” [Emphasis added.] (Sanchez, 94 CA4th at 633.)
In sum, a single act may not be a sufficient predicate for conviction when the crime charged is a continuous-course-of-conduct offense. In such cases, therefore, the jury must be instructed to unanimously agree as to a continuous course of conduct and not find the defendant guilty based on a single act or acts not amounting to a continuous course of conduct. (See, e.g., CJ 4.71.5 [resident child molester]; CJ 9.16.1 [stalking]; CJ 10.42.6 [continuous sexual abuse of a child].)
(See FORECITE F 17.01 n37.)
