Criminal Law

1861. Jury Does Not Need to Agree on Form of Theft

The defendant is charged [in Count ______] with theft.

The defendant has been prosecuted for theft under (two/<insert number>) theories: <insert theories, e.g., theft by trick, theft by larceny, etc.>.

Each theory of theft has different requirements, and I have instructed you on (both/all).

You may not find the defendant guilty of theft unless all of you agree that the People have proved that the defendant committed theft under at least one theory. But all of you do not have to agree on the same theory.

Bench Notes

Instructional Duty

Give this instruction when instructing on multiple forms of theft.


Unanimity on Theft Theory Not Required. People v. McLemore (1994) 27 Cal.App.4th 601, 605 [32 Cal.Rptr.2d 687]; People v. Counts (1995) 31 Cal.App.4th 785, 792-793 [37 Cal.Rptr.2d 425]; People v. Failla (1966) 64 Cal.2d 560, 567-569 [51 Cal.Rptr. 103, 414 P.2d 39] [burglary case]; People v. Nor Woods (1951) 37 Cal.2d 584, 586 [233 P.2d 897] [addressing the issue for theft].)

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, §§ 2-3.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.01 (Matthew Bender).

(New January 2006)