California Criminal Jury Instructions (CALCRIM) (2017)

3500. Unanimity

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A. UNANIMITY
3500.Unanimity
The defendant is charged with <insert description of alleged
offense> [in Count ] [sometime during the period of
to ].
The People have presented evidence of more than one act to prove that
the defendant committed this offense. You must not find the defendant
guilty unless you all agree that the People have proved that the
defendant committed at least one of these acts and you all agree on
which act (he/she) committed.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give a unanimity instruction if the prosecution
presents evidence of multiple acts to prove a single count. (People v. Russo (2001)
25 Cal.4th 1124, 1132 [108 Cal.Rptr.2d 436, 25 P.3d 641]; People v. Diedrich
(1982) 31 Cal.3d 263, 282 [182 Cal.Rptr. 354, 643 P.2d 971]; People v. Madden
(1981) 116 Cal.App.3d 212, 218 [171 Cal.Rptr. 897]; People v. Alva (1979) 90
Cal.App.3d 418, 426 [153 Cal.Rptr. 644].) The committee has addressed unanimity
in those instructions where the issue is most likely to arise. If a case raises a
unanimity issue and other instructions do not adequately cover the point, give this
instruction.
The Supreme Court has stated the rule as follows: “[W]hen the evidence suggests
more than one discrete crime, either the prosecution must elect among the crimes
or the court must require the jury to agree on the same criminal act. On the other
hand, where the evidence shows only a single discrete crime but leaves room for
disagreement as to exactly how that crime was committed or what the defendant’s
precise role was, the jury need not unanimously agree on the basis or, as the cases
often put it, the ‘theory’ whereby the defendant is guilty.” (People v. Russo, supra,
25 Cal.4th at p. 1132; see also People v. Sutherland (1993) 17 Cal.App.4th 602,
618–619 [21 Cal.Rptr.2d 752] [unanimity required in forgery case where
prosecution alleges forgery of multiple documents under single count, but not
where defendant charged with forging and uttering single document].)
The court has no sua sponte duty to instruct on unanimity if the offense constitutes
a “continuous course of conduct.” (People v. Maury (2003) 30 Cal.4th 342, 423
[133 Cal.Rptr.2d 561, 68 P.3d 1]; People v. Madden, supra, 116 Cal.App.3d at p.
218.) “This exception arises in two contexts. The first is when the acts are so
closely connected that they form part of one and the same transaction, and thus one
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offense. The second is when . . . the statute contemplates a continuous course of
conduct of a series of acts over a period of time.” (People v. Napoles (2002) 104
Cal.App.4th 108, 115–116 [127 Cal.Rptr.2d 777], quoting People v. Avina (1993)
14 Cal.App.4th 1303, 1309 [18 Cal.Rptr.2d 511]; internal quotation marks and
citations omitted].) The court should carefully examine the statute under which the
defendant is charged, the pleadings, and the evidence presented to determine
whether the offense constitutes a continuous course of conduct. (Ibid. [noting that
child abuse may be a continuous course of conduct or a single, isolated incident];
see also People v. Madden, supra, 116 Cal.App.3d at p. 218 [distinguishing
“continuous crime spree” and finding repeated sexual offenses did not constitute
continuous course of conduct]; People v. Wolfe (2003) 114 Cal.App.4th 177, 185 [7
Cal.Rptr.3d 483] [unanimity instruction required where acts fragmented in time or
space]; People v. Rae (2002) 102 Cal.App.4th 116, 123 [125 Cal.Rptr.2d 312]
[elder abuse offense did constitute continuous course of conduct]; People v. Cortez
(1992) 6 Cal.App.4th 1202, 1209 [8 Cal.Rptr.2d 580] [kidnapping is a continuous
course of conduct].)
In addition, “where the acts were substantially identical in nature, so that any juror
believing one act took place would inexorably believe all acts took place, the
[unanimity] instruction is not necessary to the jury’s understanding of the case.”
(People v. Beardslee (1991) 53 Cal.3d 68, 93 [279 Cal.Rptr. 276, 806 P.2d 1311];
see also People v. Champion (1995) 9 Cal.4th 879, 932 [39 Cal.Rptr.2d 547, 891
P.2d 93], questioned on unrelated issue in People v. Ray (1996) 13 Cal.4th 313,
369, fn. 2 [52 Cal.Rptr.2d 296, 914 P.2d 846].) However, the court should use
caution in applying this exception. (See People v. Brown (1996) 42 Cal.App.4th
1493, 1500–1501 [50 Cal.Rptr.2d 407]; People v. Wolfe, supra, 114 Cal.App.4th at
p. 185.) The better practice is to provide a unanimity instruction to the jury when
evidence has been admitted of separate acts that could form the basis for one
charge.
The jury need not unanimously agree on whether the defendant was an aider and
abettor or a direct perpetrator of the offense. (People v. Jenkins (2000) 22 Cal.4th
900, 1024–1026 [95 Cal.Rptr.2d 377, 997 P.2d 1044]; People v. Beardslee, supra,
53 Cal.3d at p. 93.)
The jury need not unanimously agree on which provocative act the defendant
committed when prosecution is pursing a provocative-act theory of murder. (People
v. Briscoe (2001) 92 Cal.App.4th 568, 591 [112 Cal.Rptr.2d 401].)
In a conspiracy case, the jury need not unanimously agree on what overt act was
committed or who was part of the conspiracy. (People v. Russo, supra, 25 Cal.4th
at pp. 1135–1136.) However, if a conspiracy case involves an issue about the
statute of limitations or evidence of withdrawal by the defendant, a unanimity
instruction may be required. (Id. at p. 1136, fn. 2.)
In a child molestation case, if the evidence has been presented in the form of
“generic testimony” about recurring events without specific dates and times, the
court should determine whether it is more appropriate to give CALCRIM No. 3501,
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Unanimity: When Generic Testimony of Offense Presented. (People v. Jones (1990)
51 Cal.3d 294, 321–322 [270 Cal.Rptr. 611, 792 P.2d 643].) See discussion below
in Related Issues section.
If the prosecution elects one act among many as the basis for the offense, do not
give this instruction. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1536 [70
Cal.Rptr.2d 878].) Give CALCRIM No. 3502, Unanimity: When Prosecution Elects
One Act Among Many.
Give the bracketed “sometime during the period” if the information alleges that the
charged event happened during a period of time rather than on a single date.
AUTHORITY
• Unanimity Required. Cal. Const., art. I, § 16; People v. Russo (2001) 25
Cal.4th 1124, 1132 [108 Cal.Rptr.2d 436, 25 P.3d 641].
• Instruction Required If Multiple Acts Could Support Single Charge. People v.
Russo (2001) 25 Cal.4th 1124, 1132 [108 Cal.Rptr.2d 436, 25 P.3d 641]; People
v. Diedrich (1982) 31 Cal.3d 263, 282 [182 Cal.Rptr. 354, 643 P.2d 971];
People v. Madden (1981) 116 Cal.App.3d 212, 218 [171 Cal.Rptr. 897]; People
v. Alva (1979) 90 Cal.App.3d 418, 426 [153 Cal.Rptr. 644].
• Continuous Course of Conduct. People v. Maury (2003) 30 Cal.4th 342, 423
[133 Cal.Rptr.2d 561, 68 P.3d 1]; People v. Napoles (2002) 104 Cal.App.4th
108, 115–116 [127 Cal.Rptr.2d 777]; People v. Madden (1981) 116 Cal.App.3d
212, 218 [171 Cal.Rptr. 897]; People v. Wolfe (2003) 114 Cal.App.4th 177, 185
[7 Cal.Rptr.3d 483].
• Acts Substantially Identical in Nature. People v. Beardslee (1991) 53 Cal.3d
68, 93 [279 Cal.Rptr. 276, 806 P.2d 1311]; see also People v. Champion (1995)
9 Cal.4th 879, 932 [39 Cal.Rptr.2d 547, 891 P.2d 93], questioned on unrelated
issue in People v. Ray (1996) 13 Cal.4th 313, 369, fn. 2 [52 Cal.Rptr.2d 296,
914 P.2d 846].
• Aider and Abettor v. Direct Perpetrator. People v. Jenkins (2000) 22 Cal.4th
900, 1024–1026 [95 Cal.Rptr. 2d 377, 997 P.2d 1044]; People v. Beardslee
(1991) 53 Cal.3d 68, 93 [279 Cal.Rptr. 276, 806 P.2d 1311].
• Provocative-Act Murder. People v. Briscoe (2001) 92 Cal.App.4th 568, 591
[112 Cal.Rptr.2d 401].
• Conspiracy. People v. Russo (2001) 25 Cal.4th 1124, 1135–1136 [108
Cal.Rptr.2d 436, 25 P.3d 641].
• Generic Testimony. People v. Jones (1990) 51 Cal.3d 294, 321–322 [270
Cal.Rptr. 611, 792 P.2d 643].
• Must Instruct on Election by Prosecutor. People v. Melhado (1998) 60
Cal.App.4th 1529, 1536 [70 Cal.Rptr.2d 878].
Secondary Sources
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial,
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§§ 644–648.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 40,
Accusatory Pleadings, § 40.07[9] (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 84,
Motions at Trial, § 84.03[2][b], Ch. 85, Submission to Jury and Verdict,
§ 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.21[1][c][iii] (Matthew Bender).
RELATED ISSUES
Cases Based on Generic Testimony
In People v. Jones (1990) 51 Cal.3d 294 [270 Cal.Rptr. 611, 792 P.2d 643], the
Court analyzed the due process concerns raised when a witness testifies to
numerous, repeated acts of child molestation over a period of time, but the witness
is unable to give specifics on time and date. The Court held that prosecutions based
on this type of evidence satisfied due process where the testimony met specified
criteria. (Id. at p. 316.) The Court then addressed what type of unanimity
instruction is required in such cases:
In a case in which the evidence indicates the jurors might disagree as to the
particular act defendant committed, the standard unanimity instruction should
be given. (See, e.g., People v. Gordon [(1985)] 165 Cal. App.3d [839,] 855–856
[defendant raised separate defenses to the two offenses at issue].) But when
there is no reasonable likelihood of juror disagreement as to particular acts, and
the only question is whether or not the defendant in fact committed all of them,
the jury should be given a modified unanimity instruction which, in addition to
allowing a conviction if the jurors unanimously agree on specific acts, also
allows a conviction if the jury unanimously agrees the defendant committed all
the acts described by the victim.
(Id. at pp. 321–322; People v. Matute (2002) 103 Cal.App.4th 1437, 1448 [127
Cal.Rptr.2d 472].) If the court concludes that the modified jury instruction is
appropriate, do not give this instruction. Give CALCRIM No. 3501, Unanimity:
When Generic Testimony of Offense Presented.
Instruction That Unanimity Not Required
In People v. Culuko (2000) 78 Cal.App.4th 307, 321–323 [92 Cal.Rptr.2d 789], the
court held that an instruction stating that the jurors need not agree on whether the
defendant was an aider and abettor or a principal was a correct statement of the
law and not error to give. However, in People v. Napoles (2002) 104 Cal.App.4th
108, 119 [127 Cal.Rptr.2d 777], the court found that the nonunanimity instruction
given in that case was erroneous. The court cautioned against giving any
nonunanimity instruction in a case involving a continuous course of conduct
offense. (Id. at p. 119, fn. 6.) The court stated that if a nonunanimity instruction
must be given, the following language would be appropriate:
The defendant is accused of having [], [in count] by having engaged in a
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course of conduct between [date] and [date]. The People must prove beyond a
reasonable doubt that the defendant engaged in this course of conduct. Each
juror must agree that defendant engaged in acts or omissions that prove the
required course of conduct. As long as each of you is convinced beyond a
reasonable doubt that the defendant committed some acts or omissions that
prove the course of conduct, you need not all rely on the same acts or
omissions to reach that conclusion.
(Ibid.)
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