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
New January 2006
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
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[a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143,
Crimes Against Property, § 143.01 (Matthew Bender).