unanimity instruction in California

2026In the first situation, but not the second, it should give the unanimity instruction.” ( Russo, supra, 25 Cal.4th at pp. 1134–1135.) “Even absent a request, the court should give [a unanimity] instruction ‘where the circumstances of the case so dictate.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1199 , quoting People v. Carrera, supra, 49 Cal.3d at p. 311 , fn. seem more accurate to say that, in this situation, a unanimity instruction is required, but the failure to give one is harmless.” (Id. at p. 196.) 15 8.) And whether a jury has been properly instructed, including the question of whether

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(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(See People v. Arevalo–Iraheta (2011) 193 Cal.App.4th 1574, 1589 [‘the omission of a unanimity instruction [is] harmless if the record reveals “no rational basis ... by which the jury could have distinguished between [the acts which would constitute the offenses]” ’].)” (Lueth, at p. 196.) Stated another way, the failure to give a unanimity instruction is harmless “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 .) Here, J.I. testified to being sl

2025(See People v. Jones (1990) 51 Cal.3d 294 , 321–322; People v. Milosavljevic (2010) 183 Cal.App.4th 640, 646 (Milosavljevic).) Lozano argues the unanimity instruction given by the court deprived him of his right to a unanimous verdict.

2025(Id. at p. 316; see ibid. [While “[a]dditional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim’s testimony,” they are “not essential to sustain a conviction”].) So long as the victim does so, there is “no constitutional impediment to allowing a jury, so instructed, to find a defendant guilty of more than one indistinguishable act . . . .” (Id. at p. 321.) To safeguard the constitutional requirement of unanimity under these circumstances, the Jones court further directed as follows: “In a case in w

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.

2023For example, Diedrich involved acts of bribery that occurred over a four month period. ( Diedrich, supra, 31 Cal.3d at pp. 267–271.) The temporal separation of these acts was a significant factor in the court’s decision to require a unanimity instruction.

2026(Chapman v. California (1967) 386 U.S. 18 , 23–24.) The separate counts for each firearm, while making the unanimity instruction inappropriate, also mitigated any confusion stemming from the error.

2026And in closing argument, after stating that he was “not condoning the condition of Mr. Doucet’s residence” and acknowledging that “conditions 9 Recent decisions of this district have evaluated prejudice from failure to give a unanimity instruction under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 , although there appears to be a split of authority in the Courts of Appeal on this question.

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(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. Carrera (1989) 49 Cal.3d 291 , 311–312.)” (People v. Jennings (2010) 50 Cal.4th 616, 679 .) “The key to deciding whether to give the unanimity instruction lies in considering its purpose.

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.

2026Thus, there was no danger that different jurors would find Freeman guilty of different lewd acts in the car during those minutes on that date. “ ‘[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury’s understanding of the case.’ ” (People v. Beardslee (1991) 53 Cal.3d 68, 93 .) Even were we to assume a unanimity instruction was required, on this record, any error would be harmless beyond a reasonable doubt.

2025(See Melhado, supra, 60 Cal.App.4th at p. 1534 [“either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act”], italics added.) In a related argument, Luciano contends a unanimity instruction was required for the charge of negligent discharge of a firearm.

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.

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

2026In the first situation, but not the second, it should give the unanimity instruction.” ( Russo, supra, 25 Cal.4th at pp. 1134–1135.) “Even absent a request, the court should give [a unanimity] instruction ‘where the circumstances of the case so dictate.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1199 , quoting People v. Carrera, supra, 49 Cal.3d at p. 311 , fn. seem more accurate to say that, in this situation, a unanimity instruction is required, but the failure to give one is harmless.” (Id. at p. 196.) 15 8.) And whether a jury has been properly instructed, including the question of whether

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

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

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.

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

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.

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

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).

2021Finally, even if we were to assume such an instruction was required, the failure to give it was harmless even under the Chapman v. California (1967) 386 U.S. 18 (Chapman) standard of beyond a reasonable doubt. ( Hernandez, supra, 217 Cal.App.4th at pp. 576-577 [acknowledging a split of authority on the correct standard for determining if a trial court committed harmless error when it fails to give a unanimity instruction]; People v. Vargas (2001) 91 Cal.App.4th 506, 561 .)10 “[E]rroneous failure to give a unanimity instruction is harmless if disagreement among the jurors concerning the differe

2021(People v. Hernandez (2013) 217 Cal.App.4th 559 , 576–577 [applying federal Constitution standard under Chapman]; People v. Vargas (2001) 91 Cal.App.4th 506, 562 [concluding state constitutional standard Watson applies because “there [is] no right to a unanimous verdict under the United States Constitution”].) In light of the United States Supreme Court’s determination that “[t]here can be no question … that the Sixth Amendment’s unanimity requirement applies to state and federal criminal trials equally” (Ramos v. Louisiana (2020) ___ U.S. ___, ___ [ 140 S.Ct. 1390, 1397 ]), we assume the fede

2025In addition to arguing that the court denied him due process by allowing a jury to convict him based on “vague” and nonspecific testimony–of the sort contemplated in Jones–the defendant argued that “the purported due process violation here was exacerbated by the trial court’s failure to give a juror unanimity instruction as it was required to do sua sponte.” (Id. at pp. 1443, 1447.) The Court of Appeal did not agree that the trial court erred in allowing a conviction based on generic testimony, but it did agree that the trial court erred when it failed to provide a unanimity instruction, 8 con

2024Finally, the People argue any error in failing to give the unanimity instruction was harmless under both the standard articulated in People v. Watson (1956) 46 Cal.2d 818— it was not reasonably probable defendant would have achieved a more favorable result— and that articulated in Chapman v. California (1967) 386 U.S. 18—it was harmless beyond a reasonable doubt.

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(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

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.

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

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

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.