unanimity instruction in California

2026In the first situation, but not the second, it should give the unanimity instruction.” (Russo, supra, 25 Cal.4th at p. 1135 .) “A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses.” (Maury, at p. 422.) California case law has developed an exception for cases involving a “continuous course of conduct.” (People v. Lueth (2012) 206 Cal.App.4th 189, 196 (Lueth).) The “ ‘continuous-course-of-conduct exception’ to the requirement of a unanimity instruction,” however, is really “a catch-all term, which, somewhat confusingly, embraces two wholly

2026(People v. Russo, supra, 25 Cal.4th at p. 1132 .) Here, the evidence shows an especially close temporal connection between the lewd touchings that occurred in Freeman’s car; thus we are concerned with only the first aspect of the continuous course of conduct exception—i.e. when “ ‘the acts are so closely connected that they form part of one and the same transaction, and thus one offense.’ ” (Avina, supra, 14 Cal.App.4th at p. 1309 .) Freeman’s opening brief focuses entirely on what he claims are discrete acts requiring a unanimity instruction.13 Count 4 alleged the commission of a forcible lew

2026(Jennings, supra, 50 Cal.4th at p. 679 ; Beardslee, supra, 53 Cal.3d at p. 93 .) A unanimity instruction is not required “if ‘the defendant offered the same defense to both acts constituting the charged crime, so no juror could have believed the defendant committed one act but disbelieved that he committed the other [act.]’ ” (Covarrubias, supra, 1 Cal.5th at p. 879 ; see also Jennings, at p. 679.) Stated differently, a unanimity instruction is not required “when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish

2026(People v. Hernandez (2013) 217 Cal.App.4th 559, 568 .) However, even if a unanimity instruction appears to be mandated, there are circumstances in which the instruction may be omitted.

2026In such cases, although the 24 jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described.” (Jones, supra, 51 Cal.3d at p. 321 .) The Jones court announced the following rule for unanimity instructions in cases involving generic testimony: “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. [Citation.] But when there is no reasonable likelihood of juror disagreement a

2026In such cases, although the 24 jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described.” (Jones, supra, 51 Cal.3d at p. 321 .) The Jones court announced the following rule for unanimity instructions in cases involving generic testimony: “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. [Citation.] But when there is no reasonable likelihood of juror disagreement a

2026(People v. Diedrich (1982) 31 Cal.3d 263, 283 ; People v. Hernandez (2013) 217 Cal.App.4th 559, 577 (Hernandez).) The error is also 7 harmless “‘[w]here the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence. . . .’” (Hernandez, at p. 577.) Here, the failure to give a unanimity instruction was harmless error because Hernandez offered a single defense to the rape and gun enhancement, that is, he denied he raped Jane Doe.

2026(See Hernandez, supra, 217 Cal.App.4th at p. 576 [noting conflicting authorities]; compare People v. Watson (1956) 46 Cal.2d 818, 836 [requires assessing whether it is reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred] with Chapman.) “The majority of the courts that have addressed the issue have applied Chapman.” (Hernandez, at p. 576.) We need not decide which standard should apply here because we conclude any error was harmless under either standard. 25 a unanimity instruction is harmless error.” (Ibid., quoting Diedrich, supra, 31 Cal.

2026(Chapman, supra, 386 U.S. at p. 24 ; Hernandez, supra, 217 Cal.App.4th at pp. 576–577 [applying Chapman to the trial court’s failure to give a unanimity instruction sua sponte]; People v. Thompson (1995) 36 Cal.App.4th 843, 853 [“[w]here the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless”].) XI.

2026“CALCRIM No. 3501 provides an 3 “Although there is a split of authority on whether the Chapman [v. California (1967) 386 U.S. 18 ] standard applies to the failure to give a unanimity instruction, we agree with the majority view that it does.” (People v. Jones (2024) 106 Cal.App.5th 1085 , 1096.) 6 additional manner by which a jury may unanimously find a defendant guilty beyond that provided in CALCRIM No. 3500.” (People v. Vasquez (2017) 14 Cal.App.5th 1019, 1046 .) The instruction does not benefit a defendant, instead providing the prosecution with another means of establishing guilt unanimou

2026(See, e.g., People v. Hernandez, supra, 217 Cal.App.4th at p. 577 [where “the defendant offered the same defense to all criminal acts and ‘the jury’s verdict implies that it did not believe the only defense offered,’ failure to give a unanimity instruction is harmless error”]; People v. Thompson (1995) 36 Cal.App.4th 843, 853 [“[w]here the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless”].) DISPOSITION The

2026(Chapman, supra, 386 U.S. at p. 24 ; Hernandez, supra, 217 Cal.App.4th at pp. 576–577 [applying Chapman to the trial court’s failure to give a unanimity instruction sua sponte]; People v. Thompson (1995) 36 Cal.App.4th 843, 853 [“[w]here the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless”].) XI.

2026(E.g., People v. Crandell (1988) 46 Cal.3d 833, 875 [“The unanimity instruction is not required when the acts alleged are so closely connected in time as to form part of one transaction. [Citations.] This branch of the ‘continuous conduct’ exception [citation] applies if the defendant tenders the same defense or defenses to each act and if there is no reasonable basis for the jury to distinguish between them.”]; see also People v. Lueth (2012) 206 Cal.App.4th 189, 196 .) In Jennings, however, the Supreme Court identified the “continuous-course-of-conduct exception” and the “same-defense except

2026(Jennings, supra, 50 Cal.4th at p. 679 ; Beardslee, supra, 53 Cal.3d at p. 93 .) A unanimity instruction is not required “if ‘the defendant offered the same defense to both acts constituting the charged crime, so no juror could have believed the defendant committed one act but disbelieved that he committed the other [act.]’ ” (Covarrubias, supra, 1 Cal.5th at p. 879 ; see also Jennings, at p. 679.) Stated differently, a unanimity instruction is not required “when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish

2026(Jennings, supra, 50 Cal.4th at p. 679 ; Beardslee, supra, 53 Cal.3d at p. 93 .) A unanimity instruction is not required “if ‘the defendant offered the same defense to both acts constituting the charged crime, so no juror could have believed the defendant committed one act but disbelieved that he committed the other [act.]’ ” (Covarrubias, supra, 1 Cal.5th at p. 879 ; see also Jennings, at p. 679.) Stated differently, a unanimity instruction is not required “when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish

2026(People v. Hoyt (2020) 8 Cal.5th 892, 927 ; People v. Beardslee (1991) 53 Cal.3d 68, 93 (Beardslee).) Whether a trial court should have given a unanimity instruction is a predominately legal mixed question of law and fact which is not examined with deference.

2025(See People v. Melhado (1998) 60 Cal.App.4th 1529, 1539 [to effectively elect a particular unlawful act in closing argument, the prosecutor’s statement tying the act to the charge “must be made with as much clarity and directness as would a judge in giving instruction”].) Thus, a unanimity instruction was not required.

2015(See People v. Mayer (2003) 108 Cal.App.4th 403 , 418-419; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455 ; but see People v. Melhado (1998) 60 Cal.App.4th 1529, 1536 [“[b]ecause the prosecutor did not directly inform the jurors of his election and of their concomitant duties, it was error for the judge to refuse a unanimity instruction . . .”].) We believe that a unanimity instruction was not required for a different reason.

2026(People v. Wolfe (2003) 114 Cal.App.4th 177 , 186–188 (Wolfe).) Error in failing to give a unanimity instruction is harmless beyond a reasonable doubt “where the defendant offered the same defense to all criminal acts, and ‘the jury’s verdict implies that it did not believe the only defense offered.’ ” (People v. Hernandez (2013) 217 Cal.App.4th 559, 577 .) In this case, the jury was presented with evidence that Freeman committed forcible lewd acts against M during a short period of time in the car.

2025(People v. Wolfe (2003) 114 Cal.App.4th 177 , 186–188 [we must reverse the judgment based on the failure to give a unanimity instruction unless the error is harmless beyond a reasonable doubt].) Error in failing to give a unanimity instruction is harmless beyond a reasonable doubt “where the defendant offered the same defense to all criminal acts, and ‘the jury’s verdict implies that it did not believe the only defense offered.’ ” (Hernandez, supra, 217 Cal.App.4th at p. 577 .) The error is also harmless if the jury reasonably could not disbelieve that the defendant committed one criminal act,

2026(Jennings, supra, 50 Cal.4th at p. 679 ; Beardslee, supra, 53 Cal.3d at p. 93 .) A unanimity instruction is not required “if ‘the defendant offered the same defense to both acts constituting the charged crime, so no juror could have believed the defendant committed one act but disbelieved that he committed the other [act.]’ ” (Covarrubias, supra, 1 Cal.5th at p. 879 ; see also Jennings, at p. 679.) Stated differently, a unanimity instruction is not required “when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish

2026(People v. Riel (2000) 22 Cal.4th 1153, 1199 .) 5 “‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ [Citation.] [¶] 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

2025However, any error in not instructing the jury with CALCRIM No. 3501 was harmless beyond a reasonable doubt.5 As explained in the context of a completely omitted unanimity instruction, when “ ‘the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless . . . [beyond a reasonable doubt]. [Citation.] Where the record indicates the jury resolved the basic credibility

2023(See People v. Smith (2005) 132 Cal.App.4th 1537 , 1545 & fn. 7.) As both parties apply the more stringent Chapman standard, we will do so here as well. 26 him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.]” (People v. Curry (2007) 158 Cal.App.4th 766, 783 .) Put another way, the failure to give the unanimity instruction is harmless error where “ ‘the jury’s verdict implies that it did not believe the only defense offered.’ ” (People v. Deletto (1983) 147 Cal.App.3d 458, 468 .) Here, the defense did not present any e

2026(Jennings, supra, 50 Cal.4th at p. 679 ; Beardslee, supra, 53 Cal.3d at p. 93 .) A unanimity instruction is not required “if ‘the defendant offered the same defense to both acts constituting the charged crime, so no juror could have believed the defendant committed one act but disbelieved that he committed the other [act.]’ ” (Covarrubias, supra, 1 Cal.5th at p. 879 ; see also Jennings, at p. 679.) Stated differently, a unanimity instruction is not required “when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish

2021We found the absence of a unanimity instruction reversible error because without it, some of the jurors may have believed the defendant guilty of one of the acts of bribery while other jurors believed him guilty of the other, resulting in no unanimous verdict that he was guilty of any specific bribe. [Citation.] ‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convic

2025Because there are arguably “unique facts” regarding possession of the ammunition located inside the firearm and the ammunition located inside the safe (Crawford, supra, 131 Cal.App.3d at p. 599 ), a unanimity instruction was required.

2025(People v. Covarrubias (2016) 1 Cal.5th 838, 919 .) A unanimity instruction is required where “[t]he different defenses gave the jury a rational basis to distinguish between the various acts.” (People v. Thompson (1995) 36 Cal.App.4th 843, 853 .) It applies in possession cases where conviction may be based on more than one item and there are “distinctive facts surrounding defendant’s ‘possession’ of each.” (People v. Crawford (1982) 131 Cal.App.3d 591 , 599–600 (Crawford).) The prosecution did not elect whether count 2 was based on the ammunition in the loaded firearm, or the ammunition inside

2026(E.g., People v. Crandell (1988) 46 Cal.3d 833, 875 [“The unanimity instruction is not required when the acts alleged are so closely connected in time as to form part of one transaction. [Citations.] This branch of the ‘continuous conduct’ exception [citation] applies if the defendant tenders the same defense or defenses to each act and if there is no reasonable basis for the jury to distinguish between them.”]; see also People v. Lueth (2012) 206 Cal.App.4th 189, 196 .) In Jennings, however, the Supreme Court identified the “continuous-course-of-conduct exception” and the “same-defense except

2026(E.g., People v. Crandell (1988) 46 Cal.3d 833, 875 [“The unanimity instruction is not required when the acts alleged are so closely connected in time as to form part of one transaction. [Citations.] This branch of the ‘continuous conduct’ exception [citation] applies if the defendant tenders the same defense or defenses to each act and if there is no reasonable basis for the jury to distinguish between them.”]; see also People v. Lueth (2012) 206 Cal.App.4th 189, 196 .) In Jennings, however, the Supreme Court identified the “continuous-course-of-conduct exception” and the “same-defense except

2022(See People v. Thompson, supra, 36 Cal.App.4th at p. 853 [“Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless”]; accord, People v. Brown (1996) 42 Cal.App.4th 1493, 1502 [“The important question is whether there was anything in the record by way of evidence or argument to support discriminating between the two incidents such that the jury could find that appellant committed one molestation but not th

2022Under the more stringent standard, “‘[w]here the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is 6 harmless. [Citation.] Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmles

2026As relevant here, the court instructed the jury that: “The defendant is charged in Count 3 with assault with semiautomatic firearm, in violation of . . . [s]ection 245(b).· To prove that the defendant is guilty of this crime, the People must prove that: [¶] First, the defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person; [¶] Second, the defendant did that act willfully; [¶] Third, when the defendant acted, he was aware of facts that would lead an objectively reasonable person 6 Accordingly, we need not d

2026(See Hernandez, supra, 217 Cal.App.4th at p. 576 [noting conflicting authorities]; compare People v. Watson (1956) 46 Cal.2d 818, 836 [requires assessing whether it is reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred] with Chapman.) “The majority of the courts that have addressed the issue have applied Chapman.” (Hernandez, at p. 576.) We need not decide which standard should apply here because we conclude any error was harmless under either standard. 25 a unanimity instruction is harmless error.” (Ibid., quoting Diedrich, supra, 31 Cal.

2025The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] 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 .) “There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime.” (People v. Jennings (2010) 50 Cal.4th 616, 679 .) “The justification for the exception is that there is no need for an inst

2024(See People v. Napoles (2002) 104 Cal.App.4th 108, 119 [“The erroneous failure to give a unanimity instruction is harmless if disagreement among the jurors concerning the different specific acts proved is not reasonably possible”].) Defendant’s contention the jury could have reasonably believed the pointing of the gun at B.W. occurred but the bludgeoning with the gun did not occur in light of the alleged “weak” and “contradictory” evidence B.W. suffered an injury does not persuade us otherwise.

2025(People v. Sutherland (1993) 17 Cal.App.4th 602, 611 .) “Generally, where evidence shows more than one act which could constitute the charged offense and the prosecutor does not elect to rely on any one such act, a unanimity instruction may be required.” (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294 .) “There are, however, several exceptions to this rule.

2022(People v. Sutherland (1993) 17 Cal.App.4th 602, 612 ; People v. Deletto (1983) 147 Cal.App.3d 458, 472 (Deletto).) The trial court was not required to give a unanimity instruction on the charge of possession of child pornography (§ 311.11, subd. (a)), because the People did not present more than one discrete offense to the jury. 15 Simultaneous possession of multiple items of child pornography at the same location is chargeable as only one offense under section 311.11, subdivision (a).

2015(Id. at p. 188; but see People v. Vargas (2001) 91 Cal.App.4th 506, 562 [applying standard under People v. Watson (1956) 46 Cal.2d 818, 836 , because “the question of whether defendant was entitled to a unanimity instruction is a state, not a federal, issue”].) concluded” that defendant “did indeed engage in a continuous course of conduct.” (Ibid.) Courts have reached similar results where several acts of petty theft make up a single charge of grand theft, and the defendant’s conviction for grand theft therefore reflects the jury’s acceptance of the entire course of conduct exception.

2013(See, e.g., Wolfe, supra, 114 Cal.App.4th at pp. 186-188; People v. Smith (2005) 132 Cal.App.4th 1537, 1545 [ 34 Cal.Rptr.3d 472 ]; People v. Deletto (1983) 147 Cal.App.3d 458, 472 [ 195 Cal.Rptr. 233 ]; but see People v. Vargas (2001) 91 Cal.App.4th 506, 562 [ 110 Cal.Rptr.2d 210 ] [Watson standard applies.].) In Wolfe, this court explained that federal due process requires that the prosecution convince a jury of the defendant’s guilt of the crime beyond a reasonable doubt. ( Wolfe, supra, 114 Cal.App.4th at pp. 186-188.) “When the trial court erroneously fails to give a unanimity instruction

2026(E.g., People v. Crandell (1988) 46 Cal.3d 833, 875 [“The unanimity instruction is not required when the acts alleged are so closely connected in time as to form part of one transaction. [Citations.] This branch of the ‘continuous conduct’ exception [citation] applies if the defendant tenders the same defense or defenses to each act and if there is no reasonable basis for the jury to distinguish between them.”]; see also People v. Lueth (2012) 206 Cal.App.4th 189, 196 .) In Jennings, however, the Supreme Court identified the “continuous-course-of-conduct exception” and the “same-defense except

2026(Jennings, supra, 50 Cal.4th at p. 679 ; Beardslee, supra, 53 Cal.3d at p. 93 .) A unanimity instruction is not required “if ‘the defendant offered the same defense to both acts constituting the charged crime, so no juror could have believed the defendant committed one act but disbelieved that he committed the other [act.]’ ” (Covarrubias, supra, 1 Cal.5th at p. 879 ; see also Jennings, at p. 679.) Stated differently, a unanimity instruction is not required “when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish

2026It would 14 connected in time as to form part of one transaction’ (People v. Crandell (1988) 46 Cal.3d 833, 875 ), or ‘when . . . the statute contemplates a continuous course of conduct or a series of acts over a period of time.’ (People v. Thompson (1984) 160 Cal.App.3d 220, 224 .) There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime.

2025For example, no unanimity instruction is required if the case falls within the continuous- course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ (People v. Crandell (1988) 46 Cal.3d 833, 875 ), or ‘when . . . the statute contemplates a continuous course of conduct or a series of acts over a period of time.’ (People v. Thompson (1984) 160 Cal.App.3d 220, 224 .) There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime.

2026As relevant here, the court instructed the jury that: “The defendant is charged in Count 3 with assault with semiautomatic firearm, in violation of . . . [s]ection 245(b).· To prove that the defendant is guilty of this crime, the People must prove that: [¶] First, the defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person; [¶] Second, the defendant did that act willfully; [¶] Third, when the defendant acted, he was aware of facts that would lead an objectively reasonable person 6 Accordingly, we need not d

2025People v. Matute (2002) 103 Cal.App.4th 1437 , 1449- 1450, found harmless the court’s error in failing to give a unanimity instruction where the need for unanimity was clear from the general instructions and prosecution’s arguments.