F 3500.3 Unanimity: Preliminary Facts And Predicate Acts

SERIES 3500 POST-TRIAL: CONCLUDING

TABLE OF CONTENTS
F 3500.3.1 Preliminary Facts
F 3500.3.1 Inst 1 Juror Unanimity: Preliminary Facts Which Are Not Essential Facts Or Elements
F 3500.3.1 Inst 2 Juror Unanimity: Preliminary Facts Which Are Essential Facts Or Elements

F 3500.3.2 Predicate Acts
F 3500.3.2 Note 1 Juror Unanimity As To Predicate Acts

Return to Series 3500 Table of Contents.

F 3500.3.1 Preliminary Facts

F 3500.3.1 Inst 1 Juror Unanimity: Preliminary Facts Which Are Not Essential Facts Or Elements

*Add to CC 3500:

You have been instructed that the evidence of __________ <insert evidence dependent on preliminary fact> may not be considered for any purpose unless you first find that the following preliminary fact(s) has (have) been proven by a preponderance of the evidence: __________ <insert preliminary fact(s)>.

However, it is not necessary for all jurors to unanimously agree that the preliminary fact(s) have been proved. Any juror who finds that the preliminary fact(s) to be proved may consider the evidence of __________ . Any juror who does not find the preliminary fact(s) to be proved 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 (1987) 44 C3d 57, 99; see also, People v. Hamilton (1988) 46 C3d 123, 145; but see FORECITE F 3500.3.1 Inst 2.) 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 preliminary 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].)

Identification Of Parties—See FORECITE F 100.2 Note 1.

WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.7 [Preliminary Facts]
FORECITE CG 12.2 [Duplicity/Unanimity]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

CALJIC NOTE: See FORECITE F 17.01c.

F 3500.3.1 Inst 2 Juror Unanimity: Preliminary Facts Which Are Essential Facts Or Elements

*Add to CC 3500 [CC 376 format for essential fact]:

Furthermore, you must not find the guilty unless you all agree that the prosecution has proved each fact essential to the conclusion that the defendant is guilty.

Points and Authorities

The California Supreme Court has held that juror unanimity is not required as to foundational evidentiary matters. (See People v. Miranda (1987) 44 C3d 57, 99; see also, People v. Hamilton (1988) 46 C3d 123, 145.) However, when the preliminary fact is essential to proof of the charged crime or an element of that crime, it must be proved beyond a reasonable doubt. (See FORECITE F 316(A) Inst 1.)

As one commentator observed: “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.)

Identification Of Parties—See FORECITE F 100.2 Note 1.

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.7 [Preliminary Facts]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 3500.3.2 Predicate Acts

F 3500.3.2 Note 1 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 (1994) 23 CA4th 1506, 1525, 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 (1992) 8 CA4th 28, 35.)

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, in other words, they are elements of the charged offense. (See Richardson v. U.S. (1999) 526 US 813 [143 LEd2d 985; 119 SCt 1707].) Hence, the analysis in People v. Davis (1992) 8 CA4th 28, 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 as to all elements of the charge. (See e.g., People v. Deletto (1983) 147 CA3d 458; People v. Brown (1996) 42 CA4th 1493; People v. Thompson (1995) 36 CA4th 843.)

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.]