SERIES 3500 POST-TRIAL: CONCLUDING
F 3500.1 Unanimity: Duty To Instruct
TABLE OF CONTENTS
F 3500.1 Note 1 Juror Unanimity: Prosecution Must Elect If Requested
F 3500.1 Note 2 Juror Unanimity: Evidence Necessitating Instruction
F 3500.1 Note 3 Importance Of Giving Unanimity Instruction
F 3500.1 Note 4 Juror Unanimity: Constitutional Principles
F 3500.1 Note 5 Juror Unanimity: Requirement Of Notice Before Submitting Multiple Acts To The Jury
F 3500.1 Note 6 Juror Unanimity: Continuous Course-of-Conduct Crimes
F 3500.1 Note 7 Juror Unanimity: Theory Versus Act
F 3500.1 Note 8 Jury Unanimity: Joining Completed Offense And Attempt In Same Count As Duplicitous
F 3500.1 Note 9 Juror Unanimity: Applicability To Enhancements
F 3500.1 Note 10 Juror Unanimity: Civil Forfeiture Proceeding
F 3500.1 Note 11 Juror Unanimity And Double Jeopardy
F 3500.1 Note 12 Jurors Must Unanimously Reject Any Defenses Before Convicting
F 3500.1 Note 13 “Advice To Judges”
Return to Series 3500 Table of Contents.
F 3500.1 Note 1 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 is given. (People v. Salvato (1991) 234 CA3d 872, 878-84.)
[Research Note: See FORECITE BIBLIO 17.01]
CALJIC NOTE: See FORECITE F 17.01 n1.
F 3500.1 Note 2 Juror Unanimity: Evidence Necessitating Instruction
There are five principles which have emerged from the juror unanimity case law. (People v. Melendez (1990) 224 CA3d 1420, 1428.)
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 (1982) 31 C3d 263, 282; People v. Moore (1989) 211 CA3d 1400, 1415.) “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 (1993) 14 CA4th 1303, 1309-13 [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 (1988) 206 CA3d 822, 828-29.) 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 (1995) 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 (1984) 163 CA3d 284, 300-02; see also People v. Potts DEPUBLISHED (1985) 165 CA3d 904; but see People v. Hernandez (1995) 34 CA4th 73; People v. Davis (1992) 8 CA4th 28 [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 3500.1 Note 7.]
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’s 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 [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 (1981) 116 CA3d 212, 214-20; see also FORECITE F 4.71.5a.)
Although the federal constitutional right to juror unanimity does not apply to the states (Apodaca v. Oregon (1972) 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 (1983) 147 CA3d 458, 472; see also Melendez at 1433.)
(See also PG VIII(A).)
[Research Note: See FORECITE BIBLIO 17.01]
CALJIC NOTE: See FORECITE F 17.01 n2.
F 3500.1 Note 3 Importance Of Giving Unanimity Instruction
ALERT: The importance of giving a juror unanimity instruction (e.g., CC 3500 or 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.
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.”
CALJIC NOTE: See FORECITE F 17.01 n35.
F 3500.1 Note 4 Juror Unanimity: Constitutional Principles
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 (1991) 54 C3d 140, 178; see also People v. Jones (1990) 51 C3d 294, 305; People v. Wheeler (1978) 22 C3d 258, 265; People v. Madden (1981) 116 CA3d 212, 219; People v. McNeill (1980) 112 CA3d 330, 335.) Hence, even if Schad is construed to limit the federal due process right, the state constitutional right to juror unanimity should remain viable.
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 (1972) 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 (1978) 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 (1979) 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 (1980) 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; People v. Williams (1901) 133 C 165.) “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 (1998) 60 CA4th 1529, 1534.) 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. (1974) 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 (1990) 51 C3d 294, 311-12; 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 (1983) 147 CA3d 458, 471-72; see also People v. Brown (1996) 42 CA4th 1493, 1501-02; People v. Thompson (1995) 36 CA4th 843, 853.) “[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.)
As explained in People v. Smith (2005) 132 CA4th 1537, 1545:
“Federal due process requires that before one can be convicted of a crime the prosecution must convince a jury that the evidence establishes the defendant’s guilt of the crime beyond a reasonable doubt. (Citing In re Winship (1970) 397 US 358 [25 LEd 2d 368; 90 SCt 1068].) If a jury … is permitted to amalgamate evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt to all of the jurors required to agree on the verdict, the prosecution’s burden is lessened and defendant is denied due process. [Footnote omitted.] Such significant lessening of the prosecution’s burden of proof compels reversal unless we are able to declare a belief that it was harmless beyond a reasonable doubt.”
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 14th 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 (1996) 518 US 37 [135 LEd2d 361; 116 SCt 2013] [plurality opinion]; see also Schad v. Arizona (1991) 501 US 624 [115 LEd2d 555; 111 SCt 2491]; but see Steward v. Adams (C.D. Cal. 2008) 2008 U.S. Dist. LEXIS 56676, *26-27.)
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 (1977) 432 US 197, 211, fn. 12 [53 LEd2d 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 (1991) 501 US 624, 640 [115 LEd2d 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 (1986) 478 US 570, 579 [92 LEd2d 460; 106 SCt 3101; Francis v. Franklin (1985) 471 US 307, 326 [85 LEd2d 344; 105 SCt 1965]; Sandstrom v. Montana (1979) 442 US 510, 521 [61 LEd2d 39; 99 SCT 2450].)
Impact Of Schad v. Arizona—In Schad v. Arizona (1991) 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 631.)
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 643 [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 3500.1 Note 2.)
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 (1991) 54 C3d 140, 178; see also People v. Wheeler (1978) 22 C3d 258, 265; People v. Madden (1981) 116 CA3d 212, 219; People v. McNeill (1980) 112 CA3d 330, 335.) 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.]
CALJIC NOTE: See FORECITE F 17.01 n4, F 17.01 n16, and F 17.01 n39.
F 3500.1 Note 5 Juror Unanimity: Requirement Of Notice Before Submitting Multiple Acts To The Jury
The preliminary hearing is the “touchstone of due process.” (People v. Jones (1990) 51 C3d 294, 311; see also People v. Lucas (1997) 55 CA4th 721, 737; 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 (1999) 71 CA4th 151 [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).)
CALJIC NOTE: See FORECITE F 17.01 n25.
F 3500.1 Note 6 Juror Unanimity: Continuous Course-of-Conduct Crimes
Basic Principles—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 (1982) 31 C3d 263, 282.) Examples of this category of crime are the resident child molester under PC 288.5 (People v. Avina (1993) 14 CA4th 1303, 1310); pandering (People v. White (1979) 89 CA3d 143, 151); child abuse (People v. Ewing (1977) 72 CA3d 714, 717) and spousal battery (People v. Thompson (1984) 160 CA3d 220, 225-26; see also People v. Haynes (1998) 61 CA4th 1282, 1296 [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 (1988) 46 C3d 833, 875.)
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 (1985) 165 CA3d 839, 853; see also People v. Thompson (1995) 36 CA4th 843, 850. 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.
People v. Avina (1993) 14 CA4th 1303, 1309 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; see also People v. Sanchez (2001) 94 CA4th 622, 632; People v. Dieguez (2001) 89 CA4th 266, 275; People v. Avina (1993) 14 CA4th 1303, 1311.)
CAVEAT: Continuing Course Of Conduct: Whether Jury Should Not 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; see also generally FORECITE 17.01 n38.)
CALJIC NOTE: See FORECITE F 17.01 n37.
[Research Note: See FORECITE BIBLIO 17.01.]
CALJIC NOTE: See FORECITE F 17.01 n12.
F 3500.1 Note 7 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 (1982) 31 C3d 263, 283.) On the other hand, there is no unanimity requirement as to multiple theories of 1st degree murder. (People v. Melendez (1990) 224 CA3d 1420, 1432-33.)
People v. Perez (1993) 21 CA4th 214, 222-23 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 (1998) 18 C4th 385, 408 [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 abettor. (Compare People v. Melendez (1990) 224 CA3d 1420 with People v. Davis (1992) 8 CA4th 28, and People v. Sutherland (1993) 17 CA4th 602; see also People v. Gonzales (1995) 31 CA4th 1248, 1255 [agreeing with Davis and not Melendez].)
People v. Hernandez (1995) 34 CA4th 73 held that Melendez (People v. Melendez (1990) 224 CA3d 1420) was effectively overruled by the California Supreme Court in People v. Santamaria (1994) 8 C4th 903, 918-19. 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 (1981) 116 CA3d 212, 214-20 [evidence presented of two separate sexual acts] (note that Madden was from the same district as Melendez and Hernandez); see also People v. Diedrich (1982) 31 C3d 263, 281 [“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 (1901) 133 C 11, 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 (1982) 129 CA3d 1014, 1020-21 [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 (1988) 46 C3d 833, 875.)
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 (1991) 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 (1992) 8 CA4th 28, 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 (1993) 17 CA4th 602, “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 (1995) 35 CA4th 708, 714 held that the jury need not unanimously agree upon the theory of malice to convict for second-degree murder.
D. Unanimity Required As To Every Element Of A Theory Before Jury May Rely On It—See Richardson v. U.S. (1999) 526 US 813 [143 LEd2d 985; 119 SCt 1707]; see also McKoy v. North Carolina (1990) 494 US 433, 445 [110 SCt 1227; 108 LEd2d 369] (Blackmun, concurring) [there is no general requirement that the jury reach unanimous agreement on the preliminary factual issues, but there is a general consensus among the federal circuits that there must be substantial agreement as to the principle factual elements underlying a specified offense]; U.S. v. Fawley (7th Cir. 1998) 137 F3d 458 [due process requires juror unanimity as to every element of the charge]; U.S. v. Duncan (6th Cir. 1988) 850 F2d 1104.)
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.]
CALJIC NOTE: See FORECITE F 17.01 n3.
F 3500.1 Note 8 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.)
CALJIC NOTE: See FORECITE F 17.01 n36.
F 3500.1 Note 9 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 (1989) 209 CA3d 261, 264-65.)
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 (1989) 213 CA3d 1508, 1518, 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 (1982) 131 CA3d 591, 598, 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 (1996) 48 CA4th 1060, 1070-71 [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].)
[Research Note: See FORECITE BIBLIO 17.01.]
CALJIC NOTE: See FORECITE F 17.01 n7.
F 3500.1 Note 10 Juror 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 (1990) 220 CA3d 912, 916.)
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.]
CALJIC NOTE: See FORECITE F 17.01 n14.
F 3500.1 Note 11 Juror Unanimity And Double Jeopardy
When a defendant has been improperly convicted by allowing the jurors to amalgamate evidence of multiple alleged offenses into a single conviction, the record typically does not reveal which particular offense or offenses were found by the jury. On retrial, therefore, the defendant may have a double jeopardy argument based on the possibility that the jurors rejected one or more of the multiple offenses presented by the evidence. However, because jurors may not testify as to their mental processes (see EC 1150), it is impossible to determine which facts were found by the jurors. Normally this would be the defendant’s problem since it is typically the defendant’s burden to prove that he or she has been place in double jeopardy by reason of a prior conviction or acquittal. However, a number of federal circuits and states have recognized an exception to this rule when “unique circumstances associated with the prosecution’s charging decisions and the charges themselves necessitate shifting the burden to the prosecution once the defendant makes a non-frivolous showing that an indictment or information charging him with an offense for which he was formally placed in jeopardy. (People v. Smith (2005) 132 CA4th 1537, 1549.)
In the context of juror unanimity error, it is typically the prosecution which chooses which offenses to charge and what facts to allege in support of what offenses. (See e.g., Smith, 132 CA4th at 148.) Hence, if the error results from the failure of the prosecution to either elect to prove a specific offense or to require juror unanimity by proper jury instructions, then the double jeopardy burden may properly be shifted to the prosecution. (Smith, 132 CA4th at 1549-50.)
F 3500.1 Note 12 Jurors Must Unanimously Reject Any Defenses Before Convicting
See FORECITE F 3500.2 Inst 4.
F 3500.1 Note 13 “Advice To Judges”
People v. Norman (2007) 157 CA4th 460, 467 offered the following “Advice to Trial Judges” – in light of the court’s belief that “the failure to give a jury unanimity instruction (now CALCRIM 3500) is the most common kind of instructional error in criminal cases.” “So we have this advice for trial judges: in a criminal case, put CALCRIM 3500 on your list of standard instructions to give, then ask yourself: ‘Is there some reason not to give this instruction in this case?'” The Norman court also observed that a “A most helpful discussion of the requirements for giving a unanimity instruction is found in a publication of the Administrative Office of the Courts, Education Division, Center for Judicial Education and Research: CJER Mandatory Criminal Jury Instructions Handbook (CJER 2007) sections 3.6 through 3.13.”