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.]
New January 2006
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].
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 645.
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).
3503–3514. Reserved for Future Use