SERIES 3500 POST-TRIAL: CONCLUDING
F 3500.4.3—F 3500.4.13
TABLE OF CONTENTS
F 3500.4.3 Juror Unanimity: Possession Offenses
F 3500.4.3 Note 1 Possession: Individual Units
F 3500.4.3 Note 2 Juror Unanimity As To Firearm/Weapon Possession Offenses
F 3500.4.4 Juror Unanimity: Theft
F 3500.4.4 Note 1Jury Unanimity: More Than One Discrete Crime Of Theft
F 3500.4.4 Note 2 Juror Unanimity: Jury Unanimity As To Theory Of Theft
F 3500.4.4 Note 3 Theft: Unanimity As To Act Of Theft
F 3500.4.5 Juror Unanimity: Perjury
F 3500.4.5 Note 1 Perjury
F 3500.4.6 Juror Unanimity: Assault
F 3500.4.6 Note 1 Juror Unanimity: Single Assault Based On Multiple Acts
F 3500.4.7 Juror Unanimity: Torture
F 3500.4.7 Note 1 Juror Unanimity: Torture
F 3500.4.8 Juror Unanimity: Battery
F 3500.4.8 Note 1 Juror Unanimity: Which Of Two Acts Constituted Battery
F 3500.4.9 Juror Unanimity: Vehicular Offenses
F 3500.4.9 Note 1 Juror Unanimity As To Unlawful Act Which is Basis For Drunk Driving Or Vehicular Manslaughter Charge
F 3500.4.10 Juror Unanimity As To Criminal Threats
F 3500.4.10 Note 1 Multiple Threats
F 3500.4.11 Juror Unanimity: Sex Offenses
F 3500.4.11 Note 1 Juror Unanimity: Sexual Molestation (PC 288)
F 3500.4.12 Juror Unanimity: Fraud
F 3500.4.12 Note 1 Juror Unanimity: Workers’ Compensation Fraud (Ins C 1871.4)
F 3500.4.13 Juror Unanimity: Burglary
F 35004.13 Note 1 No Unanimity As To Predicate Intent For Burglary
F 3500.4.14 Juror Unanimity: Child Abuse
F 3500.4.14 Note 1 Child Abuse May Be Charged As Continuing Course Of Conduct Or Single Act
F 3500.4.15 Juror Unanimity: Robbery
F 3500.4.15 Note 1 Juror Unanimity: Robbery
Return to Series 3500 Table of Contents.
F 3500.4.3 Juror Unanimity: Possession Offenses
F 3500.4.3 Note 1 Possession: Individual Units
In possession offenses, CJ 17.01 (or CC 3500) 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 (1997) 55 CA4th 1067, 1070-71 [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 (1967) 386 US 18 [17 LEd2d 705; 87 SCt 824] applies]; People v. King (1991) 231 CA3d 493, 499-502; see also People v. Crawford (1982) 131 CA3d 591, 599; Hill v. State (1998) 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).
[Research Note: See FORECITE BIBLIO 17.01.]
CALJIC NOTE: See FORECITE F 17.01 n6.
F 3500.4.3 Note 2 Juror Unanimity As To Firearm/Weapon Possession Offenses
Effective January 1, 1996, the legislature overruled People v. Kirk (1989) 211 CA3d 58, 60-66 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, andn7 et al.)
CALJIC NOTE: See FORECITE F 17.01 n22.
F 3500.4.4 Juror Unanimity: Theft
F 3500.4.4 Note 1 Jury Unanimity: More Than One Discrete Crime Of Theft
Because the evidence supported more than one discrete crime of theft and the prosecution failed to elect among the crimes, the trial court was required to give a unanimity instruction sua sponte. In accordance with the unanimity requirement in Cal. Const., art. I, § 16, the trial court should have instructed the jury with CALCRIM 3500, and its failure to do so was reversible error because unanimity was not assured on either the theft or the receiving stolen property charge. (People v. Norman (2007) 157 CA4th 460, 461.)
F 3500.4.4 Note 2 Juror Unanimity: Jury Unanimity As To Theory Of Theft
In People v. McLemore (1994) 27 CA4th 601, 605-06, 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.]
CALJIC NOTE: See FORECITE F 17.01 n9.
F 3500.4.4 Note 3 Theft: Unanimity As To Act Of Theft
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 (1995) 36 CA4th 843.)
CALJIC NOTE: See FORECITE F 17.01 n20.
F 3500.4.5 Juror Unanimity: Perjury
F 3500.4.5 Note 1 Perjury
See discussion at FORECITE F 7.20 n4.
[Research Note: See FORECITE BIBLIO 17.01.]
CALJIC NOTE: See FORECITE F 17.01 n10.
F 3500.4.6 Juror Unanimity: Assault
F 3500.4.6 Note 1 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 (1990) 51 C3d 72, 100.)” 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.
[Research Note: See FORECITE BIBLIO 17.01.]
CALJIC NOTE: See FORECITE F 17.01 n13.
F 3500.4.7 Juror Unanimity: Torture
F 3500.4.7 Note 1 Juror Unanimity: Torture
In People v. Jenkins (1994) 29 CA4th 287, 299-300, 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 (1985) 165 CA3d 839, 853; see also People v. Thompson (1995) 36 CA4th 843, 850. 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.
[Research Note: See FORECITE BIBLIO 17.01.]
CALJIC NOTE: See FORECITE F 17.01 n17.
F 3500.4.8 Juror Unanimity: Battery
F 3500.4.8 Note 1 Juror Unanimity: Which of Two Acts Constituted Battery
See FORECITE F 17.01 n13.
CALJIC NOTE: See FORECITE F 17.01 n18.
F 3500.4.9 Juror Unanimity: Vehicular Offenses
F 3500.4.9 Note 1 Juror Unanimity As To Unlawful Act Which Is Basis For Drunk Driving Or Vehicular Manslaughter Charge
People v. Gary (1987) 189 CA3d 1212, 1218 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 (1988) 203 CA3d 575, 586 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 (1986) 188 CA3d 216, 222.) People v. Durkin (1988) 205 CA3d Supp. 9 concluded that the continuous course of conduct exception applied to the multiple driving acts under the circumstances of that case.
CALJIC NOTE: See FORECITE F 17.01 n23.
F 3500.4.10 Juror Unanimity As To Criminal Threats
F 3500.4.10 Note 1 Multiple Threats
People v. Melhado (1998) 60 CA4th 1529 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.
CALJIC NOTE: See FORECITE F 17.01 n24.
F 3500.4.11 Juror Unanimity: Sex Offenses
F 3500.4.11 Note 1 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.
CALJIC NOTE: See FORECITE F 17.01 n27.
F 3500.4.12 Juror Unanimity: Fraud
F 3500.4.12 Note 1 Juror Unanimity: Workers’ Compensation Fraud (Ins C 1871.4)
(See People v. Dieguez (2001) 89 CA4th 266, 274-76 [unanimity instruction not required where charge of fraudulent workers’ compensation claim was based on multiple statements made to physician regarding single alleged incident].)
CALJIC NOTE: See FORECITE F 17.01 n28.
F 3500.4.13 Juror Unanimity: Burglary
F 35004.13 Note 1 No Unanimity As To Predicate Intent For Burglary
(See People v. Failla (1966) 64 C2d 560; see also People v. Griffin (2001) 90 CA4th 741, 750-52; but see FORECITE F 14.59 n3 [prosecution must provide notice of which intent it seeks to prove].)
CALJIC NOTE: See FORECITE F 17.01 n29.
F 3500.4.14 Juror Unanimity: Child Abuse
F 3500.4.14 Note 1 Child Abuse May Be Charged As Continuing Course Of Conduct Or Single Act
(See People v. Napoles (2002) 104 CA4th 108, 116.)
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 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.)
CALJIC NOTE: See FORECITE F 17.01 n38.
F 3500.4.15 Juror Unanimity: Robbery
F 3500.4.15 Note 1 Juror Unanimity: Robbery
Where the evidence presents more than one factual theory supporting a robbery conviction, unanimity is required. (People v. Davis (2005) 36 C4th 510, 560-62.)
Prosecutorial Election Or A Unanimity Instruction Is Required When There Are Multiple Takings Alleged As The Basis For A Robbery Allegation—”It is fundamental that a criminal conviction requires a unanimous jury verdict (Cal. Const., Art. I, §16; People v. Wheeler (1978) 22 C3d 258, 265 []).” (People v. McNeill (1980) 112 CA3d 330, 335.) What is required is that the jurors unanimously agree defendant is criminally responsible for “one discrete criminal event.” (People v. Davis (1992) 8 CA4th 28, 41, original italics.) “[W]hen 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 in the words of CALJIC No. 17.01 or 4.71.5 or their equivalent that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.” (People v. Gordon (1985) 165 CA3d 839, 853, fn. omitted, original italics; see also People v. Thompson (1995) 36 CA4th 843, 854.)
When robbery is charged, “the defendant [is] entitled to a unanimity instruction [where] [t]he evidence disclose[s] two distinct takings.” (People v. Davis (2005) 36 C4th 510, 563; see also People v. Sapp (2003) 31 C4th 240, 283; People v. Beardslee (1991) 53 C3d 68, 93 [“‘A unanimity instruction is required … if the jurors could … disagree which act a defendant committed and yet convict him of the crime charged'”]; People v. Diedrich (1982) 31 C3d 263, 280-282.)
However, no unanimity instruction is required (or, if required, is not prejudicial) where “the defendant offered the same defense to both acts constituting the charged crime, so no juror could have believed defendant committed one act but disbelieved that he committed the other, or, … ‘there [is] no evidence … from which, the jury could [find] defendant [is] guilty of’ the crime based on one act but not the other. [Citation.]” (People v. Davis, supra, 36 C4th at 562.)
The Failure To Require Unanimity Is Prejudicial Error Where The Evidence And Defense Is Different As To Each Taking—Failure to require unanimity as to distinct takings offered to prove a charge of robbery is prejudicial error where there is evidence from which the jury “could have found defendant guilty of robbery based on [one act] but not [the other].” (People v. Davis, supra, 36 C4th at 563; compare People v. Riel (2000) 22 C4th 1153, 1199-1200 [no juror could have believed defendant committed one act but not the other]; People v. Carrera (1989) 49 C3d 291, 311-312 [same].)
