SERIES 3500 POST-TRIAL: CONCLUDING
F 3501 Unanimity: When Generic Testimony Of Offense Presented
TABLE OF CONTENTS
F 3501 Inst 1 Unanimity: Generic Testimony—Enumeration Of Acts
F 3501 Inst 2 Concurrence Of Act And Intent
F 3501 Inst 3 When Proof Must Show Specific Act: Alibi Defense (PC 288.5)
F 3501 Note 1 Resident Child Molester Statute Held Constitutional (PC 288.5)
F 3501 Note 2 Juror Unanimity: Resident Child Molester: No Unanimity
F 3501 Note 3 Failure To Instruct On Unanimity As To Multiple Acts Of Child Molesting As Reversible Error
F 3501 Note 4 Multiple Counts: Continuous Sexual Abuse And Individual Sexual Offenses—PC 288.5 Precludes Convictions On Both Continuous Sexual Abuse Charge And Individual Sexual Offenses
Return to Series 3500 Table of Contents.
F 3501 Inst 1 Unanimity: Generic Testimony—Enumeration Of Acts
See FORECITE F 3500.2 Inst 2.
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]
F 3501 Inst 2 Concurrence Of Act And Intent
See FORECITE F 251 Inst 3.
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]
F 3501 Inst 3 When Proof Must Show Specific Act: Alibi Defense (PC 288.5)
*Add to CC 3501:
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 contends 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 where 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 (1973) 9 C3d 546, 557; see also People v. Seabourn (1992) 9 CA4th 187, 192-94; People v. Brown (1960) 186 CA2d Supp 889, 890-95; People v. Waits (1936) 18 CA2d 20, 21; People v. Morris (1906) 3 CA 1, 7-11.) 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 (1983) 143 CA3d 490, 497.)
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 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
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 (1991) 53 C3d 334, 358; People v. Cox (1968) 259 CA2d 653, 661.) 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.)
CALJIC NOTE: See FORECITE F 4.71.5b.
F 3501 Note 1 Resident Child Molester Statute Held Constitutional (PC 288.5)
In People v. Gear (1993) 19 CA4th 86, 92-93, 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 (1999) 20 C4th 150, 156.)
CALJIC NOTE: See FORECITE F 4.71.5 n2.
F 3501 Note 2 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 (1992) 9 CA4th 294, 301-04; but see FORECITE F 1120.)
[Research Note: See FORECITE BIBLIO 17.01.]
CALJIC NOTE: See FORECITE F 17.01 n11.
F 3501 Note 3 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 (1990) 51 C3d 294, the failure to require juror unanimity is error. (People v. Matute (2002) 103 CA4th 1437.)
CALJIC NOTE: See FORECITE F 4.71.5 n4.
F 3501 Note 4 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.
