3502. Unanimity: When Prosecution Elects One Act Among Many
You must not find the defendant guilty of <insert name of alleged offense> [in Count ______], unless you all agree that the People have proved specifically that the defendant committed that offense [on] <insert date or other description of event relied on>. [Evidence that the defendant may have committed the alleged offense (on another day/ [or] in another manner) is not sufficient for you to find (him/her) guilty of the offense charged.]
If the prosecutor has elected a specific factual basis for the offense alleged but evidence of multiple acts has been admitted, the court has a sua sponte duty to instruct on the election unless the prosecutor informs the jury of the election. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534-1536 [70 Cal.Rptr.2d 878].)
Election Required on Demand. People v. Russo (2001) 25 Cal.4th 1124, 1132 [108 Cal.Rptr.2d 436, 25 P.3d 641]; People v. Salvato (1991) 234 Cal.App.3d 872, 882 [285 Cal.Rptr. 837]].
Instructional Requirements. People v. Melhado (1998) 60 Cal.App.4th 1529, 1534-1536 [70 Cal.Rptr.2d 878].
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 40, Accusatory Pleadings, § 40.07 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.02[a][i] (Matthew Bender).
(New January 2006)