Return to CALJIC Part 3-4 – Contents
F 4.71.5 n1 Challenges To CJ 4.71.5 Rejected (PC 288.5).
In People v. Crow (94) 28 CA4th 440, 446-47 [33 CR2d 624], the defendant was charged with committing 8 acts of lewd & lascivious conduct within the same period of time. The jury convicted on 3 of the 8 counts. The defendant argued that People v. Jones (90) 51 C3d 294 [270 CR 611] — which set forth the general rule — doesn’t apply on two bases: 1) In this case the defendant was convicted of only 3 of 8 counts; 2) there were different kinds of acts. The court rejected both of these arguments, holding that CJ 4.71.5 is adequate for purpose of juror unanimity.
Also, in People v. Avina (93) 14 CA4th 1303, 1311-12 [18 CR2d 511], held that there is no constitutional proscription against continuous course-of-conduct crimes.
However, since the above may be federal constitutional issues, they may be preserved for federal habeas or certiorari by requesting CJ 17.01 on 14th Amendment federal due process grounds. (See generally, FORECITE F 17.01.)
F 4.71.5 n2 Resident Child Molester Statute Held Constitutional (PC 288.5).
In People v. Gear (93) 19 CA4th 86, 92-93 [23 CR2d 261], the court held that the lack of a juror unanimity requirement in PC 288.5 violates neither the defendant’s right to juror unanimity nor to due process notice of the specific acts which constitute the offense. (See also People v. Grant (99) 20 C4th 150, 156 [83 CR2d 295].)
F 4.71.5 n3 Juror Unanimity
(See also FORECITE F 17.01 et seq.)
F 4.71.5 n4 Failure To Instruct On Unanimity As To Multiple Acts Of Child Molesting As Reversible Error.
Where the prosecution relies on “generic testimony” of child molestations per People v. Jones (90) 51 C3d 294 [270 CR 611], the failure to require juror unanimity is error. (People v. Matute (2002) 103 CA4th 1437 [127 CR2d 472].) [Additional briefing on and an unpublished opinion on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-781 and # O-247.]
F 4.71.5 n5 Multiple Counts: Continuous Sexual Abuse and Individual Sexual Offenses — PC 288.5 Precludes Convictions on Both Continuous Sexual Abuse Charge and Individual Sexual Offenses.
See FORECITE F 10.42.6 n9.
F 4.71.5a
Juror Unanimity: Multiple Acts Of Child Molestation*
(PC 288.5)
*See Subsequent History Below
*To be added at end of CJ 4.71.5 when appropriate (see below for discussion of when supplemental instruction is appropriate):
If you are unable to agree upon a specific act, you may still find the defendant guilty if you unanimously agree beyond a reasonable doubt that the defendant committed all the acts described by the victim.
Points and Authorities
In People v. Jones (90) 51 C3d 294 [270 CR 611], the Supreme Court issued its decision upon the so-called “generic testimony” issue regarding child molestation cases where the victim testifies as to multiple acts of molestation but is unable to designate specific dates or months when the acts occurred.
The Supreme Court held that in cases where the jurors might disagree as to what act the defendant committed, the standard unanimity instruction CJ 4.71.5 / CJ 17.01 should be given. However, “… when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim.” (Jones 51 C3d at 322.)
Hence, in such circumstances CJ 4.71.5 should be modified as set forth above. [But see below regarding factors relating to whether there is “no reasonable likelihood of juror disagreement.”]
SUBSEQUENT HISTORY: FORECITE proposed the above instruction in July 1990. In November 1990 CALJIC provided a revised version of CJ 4.71.5 in light of Jones. However, the CALJIC version fails to follow the mandate of Jones which requires that the modified unanimity instruction should, “in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all of the acts described by the victim.” (Jones 51 C3d at 322.) The CALJIC revised instruction and its use note erroneously indicate that the specific act language should be deleted if the Jones instruction is given. Accordingly, the proposed FORECITE instruction should continue to be used rather than the revised CALJIC instruction.
NOTES
As set forth above, the Supreme Court in People v. Jones authorized use of the supplemental unanimity instruction when “the evidence indicates the jurors might disagree as to the particular act defendant committed …” In making this determination there are two inquiries which should be made.
First, as suggested by the Supreme Court in Jones, if the defendant raises separate defenses to the two offenses then there may be a potential for juror disagreement as to which act was committed based upon the varying strength or believability of the different defenses. (E.g., People v. Gordon (85) 165 CA3d 839, 855-65 [212 CR 174]; see also, People v. Diedrich (82) 31 C3d 263, 283 [182 CR 354].)
Second, even if different defenses are not advanced, the “quality of proof” may be different as to the various acts. (See, e.g., People v. Madden (81) 116 CA3d 212, 219, fn 6 [171 CR 897].) Hence, if either the prosecution or defense evidence is of differing quality as to one act or the other then logically there is a “rational basis, by way of argument or evidence, by which the jury could … distinguish [between]” the different alleged acts. (People v. Deletto (83) 147 CA3d 458, 473 [195 CR 233]; see generally, FORECITE F 17.01.)
PROPOSITION 115 NOTE
The holding in Jones was originally predicated in part upon the assumption that the defendant received a full preliminary hearing and thus received adequate notice of the charges against him. Subsequently, the court modified Jones in anticipation of Proposition 115 arguments as follows: “… the unavailability of a preliminary examination does not necessarily preclude the defendant from learning the details of the charges filed against him ….” (Jones 51 C3d at 318-19.)
This language opens the door for counsel to argue actual lack of notice on a case by case basis. Thus, even if the lack of a preliminary does not “necessarily” preclude ascertainment of the details, counsel may be able to document actual lack of notice sufficient to undermine the applicability of Jones in any given case.
F 4.71.5b
When Proof Must Show Specific Act: Alibi Defense
(PC 288.5)
*Add to CJ 4.71.5:
The defendant has offered an alibi for the period of time alleged in the information. In light of the defendant’s alibi defense, the time the alleged offense was committed becomes material. In determining whether the prosecution has met its burden of proof you must limit your consideration to the time that the prosecution evidence shows the offense was committed. If you have a reasonable doubt that the offense was committed during the period of time alleged in the information, the defendant is entitled to an acquittal.
Points and Authorities
Where the prosecution has selected a specific time or period of time during which the offense was committed and the defense has presented alibi evidence for that period of time, the defendant is entitled to an instruction telling the jury “to confine their consideration to the time that the prosecution evidence shows the offense was committed.” (People v. Jones (73) 9 C3d 546, 557 [108 CR 345]; see also People v. Seabourn (92) 9 CA4th 187, 192-94 [11 CR2d 641]; People v. Brown (60) 186 CA2d Supp 889, 890-95 [9 CR 53]; People v. Waits (36) 18 CA2d 20, 21 [62 P2d 1054]; People v. Morris (06) 3 CA 1, 7-11 [84 P 463].) The failure to require the prosecution to meet its burden of proving the commission of the offense on the specific date alleged in the information violates the defendant’s federal constitutional rights to trial by jury and due process. (6th and 14th Amendments; People v. Barney (83) 143 CA3d 490, 497 [192 CR 172].)
NOTES
Variance as to Date Between Information and Evidence at Trial. Because the precise time of a crime need not be declared in the information (PC 955), a variance between information and proof is usually not fatal to the prosecution and the jury may base its verdict upon the date shown by the evidence. (See People v. Jennings (91) 53 C3d 334, 358 [279 CR 780]; People v. Cox (68) 259 CA2d 653, 661 [66 CR 576].) However, the variance is material if the preliminary hearing failed to provide the correct date and the defendant was misled into relying upon an alibi for the date alleged in the information. (Cox 259 CA2d at 660.) In such a case, the defense must ask for a continuance to preserve the issue for appeal. (Ibid.)
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank #B-552.]
F 4.71.5c
Juror Unanimity:
Specific Act Or Group Of Acts As Alternatives
*Modify CJ 4.71.5 paragraph 2 and 3 to provide as follows [added language is capitalized; deleted language is between << >>]:
In order to find the defendant guilty, it is necessary for the prosecution to prove beyond a reasonable doubt the commission of [a specific act [or acts] constituting that crime] [OR] [all of the acts described by the alleged victim] within the period alleged.
And, in order to find the defendant guilty, you must unanimously agree upon the commission of [the same specific act [or acts] constituting the crime] [OR] [all of the acts described by the alleged victim] within the period alleged.
Points and Authorities
People v. Jones (90) 51 CA3d 294 [270 CR 611] held that “in addition to allowing a conviction if the jurors unanimously agree on specific acts, [the law] also allows a conviction if the jury unanimously agrees the defendant committed all of the acts described by the victim. (Jones, 51 C3d at 322.) The current CALJIC instruction fails to instruct the jury in such a manner. (See FORECITE F 4.71.5a.)
Moreover, even if the current CALJIC instruction is utilized, the word “or” should be inserted as set forth above.
Furthermore, in cases involving three or more acts the defendant’s federal constitutional rights (6th and 14th Amendments) are also abridged because the conviction may be based on the agreement of less than six jurors as to any one act. (See FORECITE F 17.01 n4.)
Failure to adequately instruct upon a the need for juror unanimity or agreement as to a specific act or group of acts implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to fair trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
