Unanimous Verdict/Reasonable Doubt
Category > Unanimous Verdict/Reasonable Doubt
The trial court’s instruction concerning the nonexistent uncharged offenses lowered the prosecution’s burden of proof and required automatic reversal. Defendant was convicted of vehicular manslaughter with gross negligence. The trial court improperly lowered the standard of proof by instructing that other crimes evidence can be proved by a preponderance of the evidence because no uncharged acts were admitted into evidence, the court was referring to defendant’s act of texting while driving, and this was the same evidence the prosecution used to prove gross negligence. This improper instruction constituted structural error and required reversal.id: 25130
The rape conviction was reversed where the evidence was insufficient to support it under the theory the prosecution elected even though evidence supported the conviction under a different theory.The prosecution presented evidence that the rape occurred both in the bedroom and in a vacant apartment. During argument, the prosecutor took the position that the rape occurred in the vacant apartment. But there was insufficient evidence of force in that incident. When the prosecution has elected to proceed on one theory - thus obviating the need for a unanimity instruction, the reviewing court is bound by that election. The rape conviction was reversed for insufficient evidence and a retrial was barred by double jeopardy principles.id: 24290
The trial court erred by failing to instruct on unanimity where two separate incidents discussed by the prosecutor would have supported the gun possession charge.The prosecutor introduced evidence supporting two instances of alleged gun possession and referred to both instances during closing argument. Reasonable jurors may have disagreed on which instance constituted the charged offense. The trial court erred by failing to instruct sua sponte that the jurors had to agree on which act they were using to convict defendant of the charged possession. The continuous conduct exception did not apply because the incidents were separated by time and space. The error was prejudicial where it could not be said that the jurors agreed on one act. id: 23226
The prosecutor committed misconduct by using a diagram of the State of California to explain its burden of proof. The prosecutor’s use of a diagram of the state of California to explain proof beyond a reasonable doubt was misconduct as it trivialized the prosecution’s burden of proof. However, the error was harmless given the court’s instruction to disregard the diagram and the substantial evidence of guilt in the case.id: 22946
The prosecutor committed misconduct by arguing that the beyond a reason doubt standard required the jury to determine whether defendant’s innocence was reasonable. The prosecutor improperly attempted to lower the burden of proof by arguing that the beyond a reasonable doubt standard required the jury to determine whether defendant’s innocence was reasonable. However, the error did not require reversal where the jury was properly instructed on the beyond a reasonable doubt standard, the prosecutor informed the jurors that the law would come from the judge, and following the defense objection, the court gave a curative instruction admonishing the jurors to follow the instruction.id: 22260
Instruction that the failure to prove the gun was real did not establish reasonable doubt impermissibly lightened the prosecutor’s burden. The issue at trial was whether the defendant used a real gun when committing the robberies. The court gave a pinpoint instruction saying the victim’s inability to conclusively establish the gun was real did not create a reasonable doubt as a matter of law that the gun was not a firearm. The instruction did not direct a verdict but it did impermissibly lighten the prosecution’s burden. However, the error was harmless in light of the lack of any evidence suggesting defendant used a toy gun.id: 22532
The trial court’s failure to give the standard reasonable doubt instruction was only prejudicial on the count where the standard instruction did not refer to reasonable doubt.The trial court erred by failing to read CALJIC 2.90, the standard reasonable doubt instruction. The error was harmless on the murder and voluntary manslaughter counts where the instructions pertaining to those offenses sufficiently relayed the concept of reasonable doubt to the jury. However, the error was prejudicial as to the “active participation in a street gang” (Penal Code section 186.22, subd.(a)) because the instruction given on that offense did not refer to the prosecution’s burden of proof beyond a reasonable doubt. id: 21818
The trial court prejudicially erred by removing one count from its list of charged offenses to which its unanimity instruction applied.Defendant was convicted of 38 counts of rape and various other sex offenses. The trial court erred by omitting count 52 from its list of charged offenses to which its unanimity instruction applied. The error was prejudicial under Chapman where the jurors might reasonably have convicted defendant of that count based on different acts. Defendant further argued the court’s unanimity instruction (a modified version of CALCRIM No. 3501) allowed the jurors to find him guilty on all counts if they unanimously agreed on one act of only one count. However, it was not reasonably likely the instruction was interpreted in that manner.id: 21503
Prosecutor committed misconduct during closing argument by using a Power Point presentation showing an eight piece puzzle of the Statue of Liberty with pieces missing to explain the reasonable doubt standard.The prosecutor used a Power Point presentation during closing argument to illustrate the reasonable doubt standard. She showed an eight-piece puzzle of the Statue of Liberty, with two pieces missing but then argued the jurors could find beyond a reasonable doubt that the puzzle depicted the Statue of Liberty. Use of the easily recognized iconic image along with the suggestion of a quantitative measure of reasonable doubt gave the impression of a reduced standard of proof and constituted misconduct. However, the error was harmless where the court properly instructed on reasonable doubt and evidence of guilt was overwhelming.id: 21147
The trial court erred in failing to give a specific acts unanimity instruction in addition to an instruction allowing a conviction if the jurors unanimously agreed defendant committed all of the lewd acts described by the victim.Defendant was charged with ten counts of lewd acts with a minor. The prosecution used identical generic statutory language to describe each of the ten counts (and their associated allegations of substantial sexual conduct.) The jury convicted defendant of the first count, hung on the second, and acquitted him on counts three through ten. However, the trial court erred by refusing defendant's request for a specific acts unanimity instruction as the evidence sufficiently differentiated from the types, locations and episodes of molestation. The instructional error was prejudicial under the Chapman standard. If, on retrial, defendant enters a plea of once in jeopardy, he will have the initial burden of going forward. He must make a nonfrivolous showing that he is charged with an offense for which he was previously placed in jeopardy. The prosecution will then have to establish that the new charges involve different offenses from the ones he was acquitted of committing.id: 18781
Failure to give the reasonable doubt instruction was not harmless error.The trial court erred by failing to instruct the jury with CALJIC 2.90 or an alterative instruction on the reasonable doubt standard of proof. The failure to give the instruction was federal constitutional error that was not harmless beyond a reasonable doubt where the jury was never informed they
had to acquit defendant of the charged offenses unless each element of the offenses was proved beyond a reasonable doubt.id: 19430
Unanimity instruction was required where there was only one robbery but two different theories of liability.Defendant was linked to the crime by different acts. The acts were testified to by different witnesses. The jury was not told it had to unanimously agree which act formed the basis of his criminal liability. Where a single crime can be proven by different theories based on different acts and at least two of these theories rely on different evidence, and where the circumstances demonstrate a reasonable possibility that a juror will find one theory proven and the other not proven, but that all of the jurors will not agree on the same theory, a unanimity instruction must be given.id: 13366
Court erred in failing to give the unanimity instruction for possession of narcotics for sale where possession was based on two or more units of contraband.In a prosecution for possession of narcotics for sale, where actual or constructive possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space and there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant, absent an election by the People, CALJIC 17.01 must be given to assure jury unanimity.id: 10706
Omission of the standard instructions on the presumption of innocence and the prosecution's burden of proof beyond a reasonable doubt from the predeliberation charge to the jury was reversible error.The trial court omitted the standard instruction on the presumption of innocence and the prosecution's burden of proof beyond a reasonable doubt (CALJIC 2.90) from its predeliberation charge to the jury. Although the jury may have been aware of the presumption of innocence during deliberations following arguments by counsel on the subject as well as the court's reading of CALJIC 2.90 during jury selection, the failure to repeat the instruction was not harmless beyond a reasonable doubt. There was a reasonable possibility the omission left one or more jurors without a sufficiently clear definition of reasonable doubt against which to measure the doubts that could have been raised by the defense case and the conviction was reversed.id: 13354
Supreme Court says defective reasonable doubt instruction is not subject to harmless error analysis.In a unanimous opinion written by Justice Scalia, the Supreme Court held that a constitutionally deficient reasonable doubt instruction is never harmless error. This is because it denies the defendant the Sixth Amendment right to a jury trial. Where the instructional error consists of a misdescription of the burden of proof, all of the jury's findings are vitiated and the reviewing court can only engage in pure speculation as to what a reasonable jury would have done. When it does that, the wrong entity judge[s] the defendant guilty. Chief Justice Rehnquist concurred separately.id: 13358
Court erred in instructing that the People introduced evidence tending to prove appellant's guilt.The trial court erred in instructing the jury pursuant to CALJIC 10.46.2, since an instruction that the People have introduced evidence tending to prove appellant's guilt carries the inference that the People have, in fact, established guilt. This inference would be eliminated if the phrase for the purpose of showing was substituted for tending to prove. However, the error was harmless, since in light of the other properly given instructions, it is not reasonably likely the improper instruction misled the jury on the reasonable doubt standard.id: 13336
The failure to give a unanimity instruction when defendant offered differing defenses to various acts that could constitute diversion was prejudicial error.Defendant was convicted of diversion of construction funds (Penal Code section 484b.) The prosecution did not elect a specific act upon which it relied. Instead, it directed the jury to four different areas. The defense as to each area was different. The failure to give a unanimity instruction when defendant offered differing defenses to various acts that could constitute diversions was prejudicial error.id: 13361
Failure to instruct on the presumption of innocence and the prosecution's burden of proof requires per se reversal.The trial court's failure to instruct on the presumption of innocence and on the prosecution's burden of proof beyond a reasonable doubt is instructional error that requires per se reversal of the judgment and is prejudicial error requiring reversal under any standard.id: 16108
Trial court's failure to instruct on reasonable doubt or the presumption of innocence required reversal per se.The trial court did not define reasonable doubt. Nor did it instruct the jury about the defendant's presumption of innocence, or the People's burden to prove guilt beyond a reasonable doubt. The prosecution argued the error was harmless because the jury was instructed with a proper definition of reasonable doubt through argument of counsel and other instructions relating to reasonable doubt. However, the trial court's omission constitutes a structural constitutional defect and compels reversal per se.id: 16112
Court prejudicially erred in failing to give a unanimity instruction where the evidence described two ways defendant could have committed the possession.The evidence disclosed two different ways in which defendant could have violated the single charge of possession of a controlled substance. He could have constructively possessed the heroin found in the television set or actually possessed the heroin later recovered from his pocket at the police station. The trial court erred by failing to instruct sua sponte with CALJIC 17.01, which would have required the jury to unanimously agree on which act or acts constituted the offense of possession.id: 13337
The trial court prejudicially erred when it refused to give the unanimity instruction where the prosecutor never informed the jury of the threat it relied on in proving its case.Defendant was convicted of threatening to commit a crime that would result in great bodily injury. (Penal Code section 422.) While the prosecution made an election as to the threat upon which it based its section 422 allegation, the election was communicated to the judge and defense counsel, but never to the jury. Because the prosecutor did not inform the jurors of his election and of their concomitant duties, the trial court erred in refusing to deliver the unanimity instruction in the first instance and to disregard its sua sponte duty thereafter. The error was prejudicial where it is likely the jury never considered the acts separately.id: 16111
No unanimity instruction was required where the child abuse charge consisted of a continuous course of conduct, but the court erred in giving the non-unanimity instruction.Defendant was charged with one count of felony child abuse under Penal Code section 273a, subd.(a). No unanimity instruction was required where the information informed the jurors that the charge consisted of a continuous course of conduct, to be proved by evidence of more than one individual act. The court did err in giving the non-unanimity instruction (unanimity as to specific acts is not required.) However, the error was harmless where the true issue in the case was a single credibility dispute as the father denied responsibility for all of the injuries.id: 17105
Trial court erred in failing to give unanimity instruction where multiple weapons were found in defendant's trailer.Defendant was convicted of possession of a handgun with a qualifying misdemeanor under Penal Code section 12021, subd. (c)(1). Several firearms were found in defendant's trailer. The trial court erred by failing to instruct that the jurors must agree unanimously on which weapon defendant possessed. However, the error was harmless under the Chapman standard where none of the jurors could have had a reasonable doubt that defendant possessed the guns in the light fixture.id: 17656
Trial court prejudicially erred by amplifying the reasonable doubt instruction.The trial court prejudicially erred by amplifying the reasonable doubt instruction. It was incorrect to suggest that people planning vacations or scheduling flights engage in a deliberative process to the depth required of jurors or that such people finalize their plans only after persuading themselves that they have an abiding conviction of the wisdom of the endeavor. It was also wrong to suggest that people make such decisions while aware of the concept of "beyond a reasonable doubt." The court's comments had the effect of lowering the prosecution's burden of proof. id: 17751
The trial court erred by modifying the reasonable doubt instruction during jury selection and equating it to the jurors' everyday lives.During jury selection the court discussed the concept of reasonable doubt and equated the concept with everyday decision-making in the jurors' lives. The prosecutor used the examples given by the court in his argument to the jury. The court's tinkering with the statutory definition of reasonable doubt, no matter how well intended, lowered the prosecutor's burden. The issue was reviewable even absent an objection from trial counsel since instructional errors do not require objection, and an appellate court may address an issue that has not otherwise been preserved. The instructional error required reversal.id: 17955
The trial court erred in failing to give a unanimity instruction where the prosecution presented evidence of two distinct acts of robbery.The prosecution presented evidence of two distinct acts of robbery (the taking of the car from Harris and Boyd, and the taking of Boyd's rings), but did not elect which of those two it was relying on to prove the robbery of Boyd. The trial court erred in failing to instruct the jury it had to unanimously agree on which act constituted the robbery. The error was prejudicial where the prosecutor argued the jury could rely on either theory to convict defendant of the robbery of Boyd.id: 18668
The trial court erred by failing to instruct on the effect of reasonable doubt on the choice between the greater and the lesser offense.When the defendant is charged with both a greater offense and a lesser included offense, the trial court must instruct the jury if there is a reasonable doubt as to whether defendant was guilty of the greater or the lesser offense, it could only convict him of the lesser offense. The error in failing to so instruct was harmless given the overwhelming evidence of guilt on the greater offense.id: 13248
If defendant demands an election the prosecution must elect the acts relied upon unless the acts are part of a continuous course of conduct.Where several distinct potentially criminal acts are shown, and only one charged, the defendant is entitled, at the commencement of trial (or as soon as practically possible), to a prosecution election upon demand. The court's refusal to require one is not in all cases cured by the giving of a jury instruction which requires unanimous agreement on the particular act supporting the conviction. An election cannot be required where none is possible as where the evidence is completely genuine or where the various acts do not constitute distinct potential crimes but rather one continuous course of criminal conduct. Dissuading a witness (Penal Code section 136.1) falls within the continuous conduct exception and no election or unanimity instruction was required. Terrorist threats under section 422 does not come within the continuous course of conduct exception.id: 11447
Updated 7/12/2024A trial court should instruct that the unanimity requirement applies to both the charged offense and to any lesser included offense when a guilty finding may rest on more than one act.The trial court erred by failing to give a unanimity instruction as to domestic battery, which was a lesser included offense of the charged count – corporal injury to a cohabitant. When a unanimity instruction is required for the charged offense, it should also be expressly extended to any lesser included offense for which guilty may similarly rest on more than one act.id: 28322
Updated 2/22/2024The prosecution negated the need for a unanimity instruction by making an election as to the acts upon which it was relying.Defendant argued the trial court erred in failing to provide a unanimity instruction instruction where a witness described multiple instances that would support the charged offenses. However, the prosecution expressly described the acts it was relying on during closing argument, and by making this election the prosecution negated the need for a unanimity instructions.id: 27071
Defendant had adequate notice where he was charged with one count of involuntary manslaughter and the jurors were required to agree on the acts supporting the crime. Defendant, was convicted of involuntary manslaughter following the death of a worker after an accident at the construction site. He argued that he was entitled to notice as to which of his acts the prosecution claimed were criminal. However, he was charged with a single discreet crime of manslaughter, and the jury was instructed they had to unanimously agree on the acts giving rise to defendant’s criminal liability. There was no error in failing to require the prosecutor to elect particular acts.id: 25407
Child custody deprivation offense contemplates a continuous course of conduct so no unanimity instruction was required. Defendant was convicted of child custody deprivation under Penal Code section 278.5. She argued that because the prosecutor suggested several ways in which she violated the statute, that the trial court should have instructed the jury on the requirement of unanimity. However, no such election or instruction was required because section 278.5 contemplates a continuous course of conduct.id: 25378
The continuous conduct rule applies to dependant adult abuse and no unanimity instruction was required.Defendant argued the trial court erred in failing to give the jury a unanimity instruction relating to the charge of dependant adult abuse under Penal Code section 368, subd.(b)(1). However, no unanimity instruction was required because the offense may involve multiple acts in a continuous course of conduct.id: 21542
CALCRIM reasonable doubt instruction does not shift the burden of proof to the defense.Defendant argued the language in CALCRIM 220 absent from analogous CALJIC 2.90 requiring the jury "to compare and consider all of the evidence" impermissibly shifts the burden of proof to the defense by allowing the jurors to hold against the defense the absence of defense evidence. However, the grammatical differences were not material.id: 19656
Supreme Court says new rule is "made retroactive to cases on collateral review" only if the Supreme Court says so.The jury instruction defining reasonable doubt in petitioner's trial was substantially identical to the instruction condemned by the Supreme Court in Cage v. Louisiana, 498 U.S. 39 (1990). However, the Cage rule could be applied to petitioner only if it had been "made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C. id: 20129
CALCRIM No. 220 was not unconstitutional by requiring the jury to "compare" evidence "received" at trial.CALCRIM No. 220, the reasonable doubt instruction, did not impermissibly shift the burden of proof to the defense by requiring the jury to "compare" the evidence "received" at trial. This did not suggest the defendant had a duty to present evidence and did not preclude the jury from considering the lack of evidence presented by the prosecution.id: 20277
The trial court did not err by instructing on juror unanimity with CALCRIM No. 3501 rather than 3500. Defendant argued the trial court erred by giving the unanimity instruction proved in CALCRIM No. 3501 rather than the one presented in No. 3500. However, the young girls described numerous acts of molestation in detail and the defense was that no molestation ever occurred. It was not reasonably likely the jurors would disagree as to a certain act.id: 23191
The trial court did not err in failing to give a unanimity instruction where defendant denied possessing any child pornography.Defendant argued the trial court erred by failing to instruct the jurors on the need to unanimously agree on which child pornography images he possessed. However, the defense was that he did not possess any pornography and so there was no need for the jury to treat any of the images differently from the others.id: 23367
The prosecutor did not misstate the burden of proof by suggesting it could be satisfied with a few pieces of evidence even if one was incorrect.When discussing reasonable doubt in closing argument, the prosecutor suggested there could be no reasonable doubt about which state you were discussing if you identified several California cities, even if San Diego was incorrectly mentioned as being in the northern part of the state. The example suggested the state’s burden could be met with only a few pieces of evidence, even if there was an error. This did not misstate the prosecutor’s burden and did not constitute misconduct.id: 23120
The jurors were not required to agree on whether defendant was the killer or an aider and abettor.Defendant was convicted of murder. He argued that Apprendi v. New Jersey (2000) 530 U.S. 466 requires that all jurors agree on the same theory of legal liability. However, Apprendi (and Ring v. Arizona (2002) 536 U.S. 584) did not alter the existing law, and the trial court properly refused to give a unanimity instruction.id: 23145
The trial court did not err by failing to give a unanimity instruction for the security fraud offenses where each count listed a victim and a date.Defendant was convicted of multiple counts of fraud in the offer or sale of a security in violation of Corporations Code section 25401. The trial court did not err by failing to give a unanimity instruction where each count alleged defendant sold a security to a single victim on a specific date. The jurors were not required to agree on the particular misrepresentations or omissions they relied on because that finding merely relates to the manner of committing the crime.id: 23008
No unanimity instruction was required where there were separate theories of weapon possession. Defendant argued the trial court erred by failing to instruct sua sponte that the jurors had to unanimously agree on the acts used to support the firearm possession convictions and allegations. There was evidence to show defendant actually possessed a gun, actually possessed a taser, constructively possessed a gun, and constructively possessed a taser. However, these were not separate acts, but rather separate themes of a single discrete crime or allegation. id: 22884
Failure to instruct on reasonable doubt on the gang offense was harmless where there was no reasonable possibility the jury did not use that standard to convict.Defendant was charged with murder, and active participation in a gang. The jury convicted him of voluntary manslaughter and the gang offense. The trial court failed to give the standard reasonable doubt instruction. Regarding the manslaughter conviction, the omission of the standard instruction did not violate due process because other instructions relating to the murder charge made clear the jurors had to apply the concept of reasonable doubt. Regarding the gang offense, there was a due process violation because no other instructions told the jurors to apply the standard to the gang offense. However, the error was harmless where the jury almost certainly applied the reasonable doubt standard when finding defendant guilty of the gang offense.id: 22872
The court did not decide whether there was an error in failing to give a unanimity instruction where the evidence showed to a certainty that the jury convicted defendant of striking his girlfriend causing a bump on her forehead.Defendant was convicted of inflicting corporal injury on a cohabitant. She argued the trial court erred by refusing to give a unanimity instruction where the incident could have happened in the house or outside in the yard. The caselaw is split on the issue of whether a unanimity instruction is required under the circumstances. The court did not decide whether there was instructional error here because the evidence showed to a certainty the jury unanimously convicted defendant based on the beating that caused his girlfriend’s forehead bump.id: 22716
The trial court was not required to give a unanimity instruction where the three shots were fired as part of a continuous course of conduct.The three shots fired within seconds of each other, were part of one continuous course of conduct. The trial court did not err by failing to require the prosecutor to elect which shot it relied on for the attempted murder charge and by failing to give a unanimity instruction.id: 22066
The trial court did not improperly illustrate the BRD standard, lowering the burden of proof, by giving examples including a puzzle of President Obama’s face with a piece missing.The trial court did not trivialize the reasonable doubt standard, lowering the prosecution’s burden of proof by informing jurors during voir dire that if they saw a puzzle of President Obama with one piece missing, they would still know beyond a reasonable doubt who it was, or by saying beyond a reasonable doubt that the temperature in San Bernardino in August would exceed 50 degrees, or that they could say the flag in the courtroom was an American flag.id: 22086
The trial court did not prejudicially err during voir dire when describing the concept of an “abiding conviction” for purposes of reasonable doubt as something jurors would need to be “comfortable with” in the future.During voir dire, the trial court discussed certain instructions including reasonable doubt. The court described the term “abiding conviction” as a long-lasting belief “that you will be comfortable with” in the future. Defendant argued the description reduced the prosecution’s burden of proof. However, the court was not addressing the deeply held nature of the conviction, but rather the duration of it. There is little chance the jurors later misapplied the standard especially after receiving the proper standard instruction.id: 22375
Failure to give a unanimity instruction was harmless where the charges were tied to a time frame and defendant confessed to five times the number of charged acts.The trial court erred by refusing the requested unanimity instruction where defendant committed as few as 20 and as many as 75 acts for which he could have been convicted of the lewd acts charged in counts 6 through 10. However, the error was harmless where the number of counts was tied to a time frame, the victim and defendant testified consistently as to the same acts, and defendant confessed to approximately five times the number of offenses for which he was convicted.id: 22130
The trial court properly instructed the jury that the prosecution needed to prove each element of the offense beyond a reasonable doubt.Defendant argued the trial court erred by instructing with the revised version of CALCRIM No. 220 which omits language from the earlier version suggesting the prosecution must prove "each element" of the crime beyond a reasonable doubt. However CALCRIM No. 220, viewed with the instruction on the offense of possession of a controlled substance in a penal situation, correctly informed the jury that the prosecution bore the burden of proving each element of the crime beyond a reasonable doubt.id: 21618
The trial court did not err by instructing jurors they need not agree on which Vehicle Code violations supported the evasion count. Defendant was convicted of reckless evasion under Vehicle Code section 2800.2. The trial court did not err by instructing the jury that it need not unanimously agree on which Vehicle Code violation supported the "willful and wanton" element because all of the violations occurred during the 18 minute pursuit and were part of a single transaction.id: 21627
The prosecutor did not commit prejudicial misconduct by arguing that abiding conviction for purposes of reasonable doubt does not require a permanent belief. Defense counsel, when arguing reasonable doubt during closing argument suggested the required abiding conviction was a "permanent sort of belief." The court sustained the prosecutor's objection that counsel had misstated the law. The prosecutor thereafter argued the abiding conviction can be more temporary. Defendant argued that by limiting his attorney's argument and allowing the prosecutor's, the court misled the jury regarding "permanency" as it relates to an abiding conviction. However, there was no prejudicial misconduct by the prosecutor since there was no reasonable likelihood the jury misunderstood the concept of reasonable doubt based on the prosecutor's comments. id: 20928
The trial court was not required to give a unanimity instruction in the felony hit and run case.Defendant was convicted of hit and run resulting in death. He argued the trial court should have instructed the jury sua sponte with a unanimity instruction as to when he knew he had be involved in an injury-causing accident, and therefore when his duty to act arose. However, there was one discrete act of leaving the scene after an injury-producing accident and the jury was not required to determine when his knowledge arose.id: 20775
The trial court did not err in giving the wrong unanimity instruction as to the incest count where there was evidence of more than one act. Defendant argued the trial court erred in failing to give the required specific acts unanimity instruction for the one count of incest where the evidence consisted of at least two specific instances. While the “specific acts version” of CALJIC 4.71.5 may have been more appropriate, the instruction given required the jurors to unanimously agree that defendant committed all of the acts described by the victims. There was no error.id: 20645
CALCRIM 220 does not convey the impression that the reasonable doubt standard is merely a high degree of objective probability.CALCRIM No. 220, does not misstate the proof beyond a reasonable doubt standard by not referring to the conviction of proof being deeply “felt”.id: 20644
CALCRIM No. 220, when read with the other instructions, informed the jurors that the prosecutor had to prove each element of a crime beyond a reasonable doubt.Defendant argued CALCRIM No. 220 was defective because it failed to inform the jury that it was required to find “each element of a crime” true beyond a reasonable doubt. However, the instruction when viewed with the others correctly informed the jury that the prosecutor was obliged to prove each element of the crime charged beyond a reasonable doubt.id: 20509
Counsel’s failure to object to the allegedly inadequate unanimity instruction forfeited the issue and counsel did not render IAC in failing to object.Defendant was convicted of multiple counts of receiving stolen property. She argued the unanimity instruction was inadequate. However, she failed to object to the instruction and the issue was forfeited because defendant’s substantial rights were not affected by the instruction given. (Penal Code section 1259). Moreover, defense counsel was not ineffective in failing to object to the questionable language because the record did not show why counsel failed to object.id: 20555
CALCRIM No. 220 was not defective for failing to state the prosecution must prove every element beyond a reasonable doubt.CALCRIM No. 220, the reasonable doubt instruction, was not inadequate for failing to state that the prosecution had to prove every element of the charged crime beyond a reasonable doubt.id: 20415
CALCRIM reasonable doubt instructions did not suggest a preponderance standard by asking jurors to "impartially compare and consider all of the evidence."Defendant argued the trial court's instructions on reasonable doubt, CALCRIM No. 103 before trial and CALCRIM No. 220 during trial, undermined the presumption of innocence. He claimed the term "impartially compare and consider all of the evidence" rendered the instruction similar to the civil preponderance standard. However, when the instructions are considered in their entirety, they adequately describe the appropriate standard regarding the presumption of innocence. In addition, as the courts have repeatedly held, the term "abiding conviction" was not improper.id: 20101
The jury was not required to unanimously agree on which two or more crimes constituted a pattern of criminal activity for gang provisions.Defendant was charged with participating in a criminal street gang under Penal Code section 186.22, subdivision (a) and the street gang enhancement under section 186.22, subdivision (b)(1) was also alleged. Defendant argued the court should have instructed the jurors they had to unanimously agree on which two of several possible predicate offenses established that 18th Street had engaged in a pattern of criminal gang activity and was therefore a criminal street gang. However, no unanimity instruction was required because a pattern of criminal gang activity contemplates a continuous course of conduct.id: 10539
Any error in failing to give a unanimity instruction was harmless given the strength of evidence of defendant's guilt as to one act of robbery.Defendant argued the trial court erred by failing to give a unanimity instruction where the evidence showed three acts of robbery. However, two of the items were taken simultaneously. Any instructional error was harmless where the evidence of defendant's act in one of the robberies was overwhelming.id: 20039
No unanimity instruction was required where defendant was charged with assault with a firearm after repeatedly firing the gun from a single location.Defendant was convicted of assault with a semiautomatic firearm following an incident where he repeatedly fired the gun while standing in one location. Despite defendant's claim that there were various factual scenarios which could have been used to convict him, his actions were part of a continuous course of conduct and the trial court did not err in failing to give a unanimity instruction.id: 19973
The trial court prejudicially erred in failing to give the unanimity instruction where the prosecutor argued two theories supported the conviction.Defendant was convicted of petty theft with a prior and receiving stolen property. The prosecutor argued two theories as to each charge. The trial court erred by failing to give a sua sponte unanimity instruction (CALJIC 17.01, now CALCRIM 3500) advising the jurors must agree on the conduct supporting the conviction. The error was prejudicial where the record did not show the jurors agreed on an act.id: 19978
CALCRIM No. 220 does not limit the jury's consideration of the lack of evidence when considering reasonable doubt.Defendant argued CALCRIM No. 2.20 lowered the reasonable doubt standard by precluding the jury from considering a lack of evidence in determining whether a reasonable doubt existed. However, contrary to his claim the instruction did not tell the jury that a reasonable doubt must arise from the evidence presented. It merely said the jury was to consider all of the evidence presented. Moreover, the instruction did not erroneously fail to define their "abiding conviction."id: 19949
CALCRIM No. 220 did not prevent jurors from considering a lack of evidence in deciding whether a reasonable doubt existed.Defendant argued the reasonable doubt instruction described in CALCRIM No. 220 was flawed in that it prevented the jurors from considering a lack of evidence in deciding whether reasonable doubt existed. However, even though the instruction refers to "the evidence that was received throughout the trial" the instruction requires the jurors to acquit in the absence of evidence. There was no due process violation.id: 19891
The words "rather than" in the CALCRIM instruction dealing with deliberations and completing the verdict forms did not reduce the prosecution's burden. Defendant argued the words "rather than" in CALCRIM 3517 reduced the prosecutor's burden of proof. However, that instruction discusses deliberations and the manner in which to complete verdict forms. It is not the primary instruction on burden of proof, and the other instructions properly informed jurors of the prosecutor's burden.id: 19763
The CALCRIM reasonable doubt instruction does not suggest a defendant must adduce evidence that promotes a reasonable doubt.Defendant challenged the reasonable doubt instruction described in CALCRIM No. 220. Contrary to his claim, nothing in
the instruction implies the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial.id: 19775
CALCRIM 302 does not require jurors to accept testimony unless the defense disproves it.CALCRIM 302 regarding the evaluation of conflicting evidence does not undermine the presumption of innocence by requiring the jury to accept witness testimony unless the defense disproves it.id: 19719
CALCRIM reasonable doubt instruction does not imply there are permissible reasons for bias against the defendant.Defendant argued the reasonable doubt instruction set forth in CALCRIM 220 was flawed because it could be read to infer bias against the defendant by enumerating certain reasons for which bias against the defendant is impermissible. However, the instruction properly tells the jury the fact that defendant has been arrested, charged or tried may not be considered against him.id: 19722
CALCRIM reasonable doubt instruction cannot be interpreted to suggest the jury could consider defendant's arrest or trial as evidence of guilt.CALCRIM No. 103 did not misstate the law regarding reasonable doubt and cannot be reasonably interpreted to suggest the jury may consider the fact of defendant's arrest or trial as evidence of his guilt.id: 19686
CALCRIM 220 did not violate the due process right to have the jury find guilt beyond a reasonable doubt.Defendant argued the CALCRIM reasonable doubt instruction (CALCRIM 220) improperly informed the jury that it could not consider the lack of physical evidence implicating him in the crime in determining whether the prosecution met its
burden of proving him guilty beyond a reasonable doubt. However, the instruction did not violate defendant's due process right to have his guilt determined beyond a reasonable doubt.id: 19667
CALCRIM instruction on section 1108 evidence did not reduce the prosecution's burden of proof.The trial court admitted evidence of defendant's prior sex
offenses under Evidence Code sections1108 and later instructed with CALCRIM No. 1191, which is the equivalent of CALJIC No. 2.50.01. The courts have previously rejected claims that
the CALJIC instruction reduced the prosecution's burden of proof, and the CALCRIM instruction is likewise proper.id: 19575
The unanimity instruction that required the jury to find defendant committed all acts described by the victim was sufficient. Defendant argued the trial court erred by failing to instruct the jury with a specific acts unanimity instruction as to the incest count. However, the court did instruct that the jury need unanimously agree that defendant committed all acts described by the victim. That instruction was sufficient.id: 19526
The inadvertent omission of CALJIC 2.90's definition of reasonable doubt and explanation of the presumption of innocence was not federal constitutional error where the concepts were adequately covered by other instructions.Defendant argued the trial court's inadvertent omission of CALJIC 2.90 definition of reasonable doubt and explanation of
the presumption of innocence is federal constitutional error that is either structural in nature and therefore reversible per se, or at a minimum, is not harmless beyond a reasonable doubt.
However, the instructions given adequately apprised the jury of both the reasonable doubt standard and the due process requirement that guilt be adjudged solely on the evidence presented. Thus, the omission was not federal constitutional error, and any error was harmless under the Watson standard.id: 19112
The failure to redefine reasonable doubt at the penalty phase was harmless.Defendant argued the court erred in failing to redefine reasonable doubt as part of the penalty phase instructions. The failure to do so was harmless where, absent any suggestion to the
contrary, the jury would likely have assumed the reasonable doubt the court referred to at the penalty phase had the same meaning as the term had during the guilt phase.id: 19054
No unanimity instruction was required where three acts used to support child endangerment occurred in a brief time and there was no basis for distinguishing between them. Defendant was charged in count three with felony child endangerment under Penal Code section 273a based on an incident where she grabbed her son by the throat, threw him against a refrigerator, and when he got up, hit the wall close to his head with a mop. No unanimity instruction was required where there was no reasonable basis for distinguishing between the several acts of violence that occurred in the short term.id: 19025
No unanimity instruction was required where the prosecutor elected one of the acts as the basis for the charge.Defendant argued the trial court erred in failing to give a
unanimity instruction since there was evidence of two distinct threats that would have supported the instruction. However, no instruction was necessary where the prosecutor informed the jurors he was electing one of the threats as the basis for the charge.id: 18976
Rule requiring unanimity instruction does not apply in SVP proceedings.At defendant's SVP trial, he argued the court erred in failing to give the unanimity instruction (CALJIC 17.01) on whether the jury found force, duress, or substantial sexual conduct. However, the rule requiring a unanimity instruction does not apply in civil SVP proceedings.
id: 18907
The court did not err by failing to require unanimity as to the theory which supported the GBI enhancement.Defendant was found to have molested his 13 year-old stepdaughter who became pregnant and had an abortion. The jury also found true the alleged great bodily injury enhancement. Defendant argued the court erred by failing to instruct the jurors on the need to be unanimous as to which condition, the pregnancy or the abortion, constituted great bodily injury. However, no such instruction was required. There was no disagreement that defendant's crime caused the pregnancy. Due process only required a unanimous verdict on the enhancement provision, whether or not it agreed on the underlying theory.id: 18830
No unanimity instruction was required where the alleged stalking offense involved a continuous course of conduct. (221)(788) Defendant was convicted of stalking his ex-wife. He argued that because there was a series of discrete events that could have formed the basis for the jury's verdict, the court erred by not sua sponte giving the unanimity instruction - CALJIC 17.01. However, because defendant was charged with a course of conduct offense occurring over a period of time, no unanimity instruction was necessary.id: 18619
The trial court did not err in failing to give a unanimity instruction on the theory of murder.Defendant argued the trial court erred in failing to instruct that the jury must unanimously agree on which theory of first degree murder supported the verdict. However, when the evidence shows a single discrete crime, but leaves room for disagreement as to how that crime was committed, the jury need not unanimously agree on the theory under which the defendant is guilty.id: 18381
No unanimity instruction was required where the jurors could not reasonably distinguish between two acts committed within an hour.Defendant argued the trial court's failure to give a unanimity instruction deprived him of the right to have the jury unanimously agree on the specific act constituting the crime of attempted use of a counterfeit access card at a convenience store. The evidence showed defendant entered the store, left, and then returned an hour later. There was no conceivable construction of the evidence that would permit the jury to find defendant guilty of the crime based upon one act but not the other. No unanimity instruction was required.id: 18335
Failure to give version of CALJIC reasonable doubt instruction that existed at the time did not violate ex post facto or due process provisions.Defendant was convicted in 1982 of a 1980 murder. His conviction and death sentence were reversed. He was convicted and sentenced to death a second time. He argued the court at the second trial erred by failing to give the reasonable doubt instruction that was in effect at his first trial. That instruction referred to "moral evidence" and "moral certainty." However, since CALJIC instructions do not constitute legislative or decisional law and thus cannot implicate ex post facto concerns or due process, defendant's only argument is that the revised CALJIC 2.90 is defective. The case law makes clear the instruction is valid.id: 17972
The trial court was not required to give a unanimity instruction where the strangulation and blow to the head were part of a continuous course of conduct.Defendant argued the trial court was required to instruct sua sponte with CALJIC 17.01, that before convicting defendant of murder, it had to agree on the act or acts causing death. He claimed the instruction was necessary since the death could have resulted from either strangulation or being hit on the head with a rock. However, the evidence did not reflect multiple, independent acts, any of which could have caused the death. The two theories were based on a continuous course of conduct, whose acts were so closely connected in time as to form part of one transaction. id: 17309
No unanimity instruction was needed where the defendant's failure to feed and clean the elder victim constituted a continuous course of conduct.Defendant was convicted of elder abuse under Penal Code section 368, subd.(b)(1). He argued that because there was evidence of two separate events, one before and one after the victim's hospitalization, a unanimity instruction was required. However, defendant's failure to feed the victim and assist in basic functions relating to hygiene was ongoing, and constituted a continuing course of conduct. Therefore, the court's refusal to instruct with CALJIC No. 17.01 was not erroneous.id: 17010
No unanimity instruction was required where the prosecution specified which conduct amounted to the charged crime during closing argument.Defendant was charged with knowingly accessing computer files from his former employer during a nine month time period. He argued the court erred in failing to instruct that the jury need unanimously agree that the prosecutor proved defendant committed a specific act. Defendant claimed the prosecutor had referred to two separate sets of facts. However, the prosecutor repeatedly asserted in argument that the crime was completed when defendant copied the source code files and took them home for installation on his home computer. The prosecutor did not rely on defendant's alleged later use of the source code as a separate violation. id: 16840
No unanimity instruction was required in animal cruelty case for offenses involving the continuous failure to provide food and water.Defendant was convicted of several counts of animal cruelty under Penal Code section 597, subd.(b). He argued the court erred in failing to give a unanimity instruction. Animal cruelty may be committed as part of a continuous course of conduct, i.e., by failing to provide food, water and shelter. In such a case a unanimity instruction is not required. Several of the present counts involved such conduct so no instruction was required. However, in count 7, it was alleged that defendant kicked a dog and the prosecution presented evidence of two such incidents. Failure to give the unanimity instruction as to that count was prejudicial error.id: 16603
Jury need not agree on the specific provocative act which triggered liability for murder.The trial court did not err by informing the jury that unanimity was not required about which intentional act that he committed triggered liability for murder. The jury need only agree on guilt of the charged crime and not on the theory.id: 16482
Jury unanimity on at least one overt act is not required for a conspiracy conviction.The trial court did not err by refusing to instruct the jury to unanimously agree on the facts underlying the elements of the conspiracy. Because any crime that was the object of the conspiracy was sufficient to establish the conspiracy, there were multiple theories upon which the prosecution could proceed. A unanimity instruction is inappropriate where multiple theories may provide the basis for a guilty verdict on one discrete criminal event.id: 16359
Court did not err in not giving CALJIC 17.01 in the conspiracy case despite evidence of two robberies where there was no evidence showing defendant was guilty of one but not the other.Defendant was charged with conspiracy. The evidence showed two acts of robbery. Defendant argued the court erred in failing to instruct the jurors on the need for unanimous agreement on the specified overt act. However, if the jury believed the witness who testified as to both robberies, it is inconceivable that they would not convict as to that count. This was not a situation where some jurors might have found him guilty of the first but not the second robbery, and others would have found him guilty of the second but not the first.id: 16106
Court expresses frustration over the continued challenge to the reasonable doubt instruction.Defendant argued CALJIC 2.90 is defective in that it gave the jury no guidance as to the level of certainty to which it must be persuaded before it could reliably determine that the prosecution had met its burden of proof beyond a reasonable doubt. The court noted the issue has been conclusively settled adversely to defendant's position, and suggested that attorneys no longer raise the issue.id: 16107
Standard reasonable doubt instruction CALJIC 2.90, as revised in 1994 does not violate due process.The trial court did not violate defendant's due process rights by giving CALJIC 2.90, as revised in 1994.id: 16109
The jurors were not required to agree on whether the murder was premeditated or committed in the course of a felony.Defendant argued the jury should have been required to agree whether the murder was premeditated or committed in the course of a felony. However, unanimity as to the theory under which a killing is deemed culpable is not required. Each juror need only find defendant was guilty of first degree murder.id: 16110
Pre-1999 version of CALJIC 2.50.01 did not permit a conviction without proof beyond a reasonable doubt.CALJIC 2.50.01, as it read prior to its 1999 revision, stated that if jurors found defendant committed a prior sex act, they may, but were not required, to infer that he was likely to commit and did commit the present crimes. The instruction adequately conveyed the prosecution's burden of proof when read together with CALJIC Nos. 2.00, 2.01, and 2.50.1.id: 15990
SVP Act's requirement that the offender is "likely" to engage in sexually violent behavior does not dilute the reasonable doubt standard.Defendant argued that while the Sexually Violent Predators Act under Welfare and Institutions Code section 6600, et seq. purports to require proof beyond a reasonable doubt it requires the trier of fact simply to determine whether an offender is "likely" to engage in sexually violent criminal behavior. However, the requirement that the offender is likely to engage in sexually violent criminal behavior does not unconstitutionally circumvent or dilute the state's reasonable doubt standard.id: 15741
Instructions taken from Evidence Code section 1108 do not lower the prosecution's burden of proving the current offenses beyond a reasonable doubt.Defendant was convicted of two counts of lewd acts with a child. At trial, the prosecution presented evidence of his prior sexual misconduct pursuant to Evidence Code section 1108. Contrary to defendant's claim, CALJIC Nos. 2.50.1 and 2.50.01 (which are based on section 1108) do not unconstitutionally lower the prosecution's burden of proving the current sex offenses beyond a reasonable doubt by permitting prior sex offenses (proved by a preponderance of the evidence) to show that he actually committed the current crime.id: 15373
Unanimity instruction was not required in worker's comp fraud case where all statements alleged and relied upon were part of a continuing transaction,Defendant was convicted of making a false material statement in support of a worker's compensation claim in violation of Insurance Code section 1871.4, subd.(a)(1). He argued the court erred in failing to give a unanimity instruction requiring jurors to agree as to the fraudulent statement. However, no unanimity instruction was required since each of the false statements alleged and relied upon by the prosecution were so closely connected as to form one continuing transaction.id: 15048
Failure to give unanimity instruction to determine which lewd act defendant committed was harmless where the jury rejected the only defense that one particular fondling occurred.Defendant was charged with child molestation under Penal Code section 288, subdivision (c). Because of the changes in the victim's testimony concerning additional lewd incidents the trial court erred in failing to deliver a unanimity instruction. However, the error was harmless where the jury necessarily rejected the only defense so there was no doubt that a certain fondling occurred. For the unanimity instruction to make a difference there must be evidence from which jurors could both accept and reject the occurrence of at least the same number of facts as there are charged crimes. There was no such evidence.id: 13344
Inadvertent reference to defendant's burden of proof was harmless in light of the other properly given instructions.The trial court instructed the jury to consider the lesser offense if you're convinced beyond a reasonable doubt that defendant is not guilty of the first two. In light of the other, properly given instructions, there is no reasonable likelihood that the jury would have understood the trial court's brief and apparently inadvertent misstatement to mean that the defendant had the burden of proving his innocence beyond a reasonable doubt.id: 13345
Instruction that if one interpretation of the evidence appears reasonable to accept it did not transform reasonable doubt into a higher degree of doubt.The jury was given the standard pattern jury instructions on reasonable doubt and the consideration of circumstantial evidence. They were also instructed that if one interpretation of the evidence appears reasonable and the other does not, they must reject the unreasonable. Defendant argued use of the word appears eviscerates the constitutional requirement of proof beyond a reasonable doubt. However, these instructions merely informed the jury to reject unreasonable interpretations of the evidence and give defendant the benefit of any reasonable doubt.id: 13346
It is not necessary for the jury to agree whether defendant was the direct perpetrator or had aided and abetted the burglary.Defendant was convicted of burglary. The prosecutor argued that defendant's liability could be predicated on either his actual entry into the house or on aiding and abetting his companion. Defendant argued the court erred by failing to instruct the jury sua sponte under CALJIC 17.01 that it must unanimously agree which acts defendant committed constitute burglary. However, the failure to so instruct was not erroneous because it is not necessary for the jury to unanimously agree whether defendant was the direct perpetrator or had aided and abetted the burglary.id: 13347
Jury was not required to agree whether defendant was the actual killer or an aider and abettor where the two theories were based on a single course of conduct.Prosecutor argued defendant should be convicted of murder because he fired the fatal shot with intent to kill the victim, and even if she was already dead when the shot was fired, defendant should be convicted as an aider and abettor. Defendant argued the jury should have been instructed on the need to unanimously agree that defendant was either an aider and abettor or the actual killer. However, the two theories were based on a single course of conduct. Since the jury had to at least unanimously agree on the facts required for conviction as an aider and abettor, no further unanimity instructions were required.id: 13348
Motive instruction did not confuse jurors by telling them to decide between guilt and innocence rather than proof beyond a reasonable doubt.Defendant argued the instruction on motive (CALJIC 2.51) violated due process by erroneously telling the jurors they were to decide between guilt and innocence instead of determining if guilt had been proven beyond a reasonable doubt. However, a reasonable juror would understand that the language of CALJIC 2.51, that motive may tend to establish guilt while lack of motive may tend to establish innocence, cannot be considered a standard of proof instruction apart from the reasonable doubt standard clearly set forth in CALJIC 2.90.id: 13349
No due process violation in child molest case where there was detailed evidence supporting each alleged sex act.There was detailed substantial evidence of a specific sexual act supporting each count charged for the time period relevant to that charge. Under the unanimity instruction given the verdicts were viewed as constituting a unanimous determination that defendant committed the act charged for each time period.id: 13350
No unanimity instruction was required where the kidnapping was a continuous act.Defendant argued the court erred in failing to instruct sua sponte that the jury need unanimously agree on the particular act constituting the crime charged <197> aggravated kidnapping. He argued the activities at the victim's home constituted one offense, while the later offense where the victim was taken away and died comprised a second, separate offense. However, once the victim was detained, he never regained his liberty. Therefore, the kidnapping was a continuous act and there was no duty to give the unanimity instruction.id: 13351
No unanimity instruction was required where defendant was charged with one robbery of two victims.Defendant argued the court erred in failing to give the jury a unanimity instruction since he was charged with one robbery of two victims and some jurors could have found that he robbed one victim and the rest could have found he robbed the other victim. It was not necessary to distinguish between the two victims as there was no evidence from which the jury could have found defendant was guilty of robbing one but not the other.id: 13352
Omission of several words from reasonable doubt instruction did not render the instruction confusing or unintelligible.In instructing on reasonable doubt pursuant to CALJIC 2.90, the court stated: It is that state of the case which, <U>after the evidence</U>, leaves the jurors . . . . The instruction omitted several words and should have stated: It is that state of the case which, after the entire comparison and consideration of all the evidence . . . . The omission did not render the instruction unintelligible and there was no likelihood the jury would have misunderstood the reasonable doubt standard.id: 13353
Reasonable doubt instruction is not constitutionally defective because of its reference to moral certainty.Appellant argued that the giving of CALJIC 2.90, defining reasonable doubt, constituted reversible error because of its reference to moral certainty, which he claimed, violates <i>Cage v. Louisiana</i> (1990) 498 U.S. 39. However, CALJIC 2.90, unlike the instruction given in <i>Cage</i>, does not transform true reasonable doubt into a higher degree of doubt.id: 13355
Reasonable doubt instruction omitting the depending on moral evidence language satisfied federal due process concerns.In <i>People v. Freeman</i> (1994) 8 Cal.4th 450, the California Supreme Court stated in dicta that trial courts in the future might delete the and depending on moral evidence language in the reasonable doubt instruction. Defendant argued the trial court's deletion of such language in the instant case was improper because the resulting instruction was insufficient to convey the degree of certainty required for proof beyond a reasonable doubt. However, the instruction given satisfied federal due process concerns.id: 13356
Revision of the reasonable doubt instruction did not mislead the jury as to the prosecution's burden of proof.The trial court modified the reasonable doubt instruction, CALJIC 2.90 by deleting the term and depending on moral evidence and abbreviated the phrase leaves the minds of the jurors in that condition they cannot say they feel to do not feel. However, the instruction as given still required the jury to have an abiding conviction, to a moral certainty, of the truth of the charge. The revised instruction did not undermine CALJIC 2.90's requirement that jurors look to the empirical evidence offered at trial in making their decision. The modified instruction did not mislead the jury as to the prosecution's burden of proof.id: 13357
Supreme Court says instructions correctly conveyed the concept of reasonable doubt.In <i>Cage v. Louisiana</i>, 498 U.S. 39 (1990), the Supreme Court invalidated a reasonable doubt instruction that declared a reasonable doubt must be such . . . as would give rise to a grave uncertainty, is an actual substantial doubt and requires a moral certainty. Here, the Court considered the constitutional validity of reasonable doubt instructions in two death penalty cases (California and Nebraska) and determined that the instructions as a whole correctly conveyed the concept of reasonable doubt. Delivering the opinion of the court, Justice O'Connor found there was no reasonable likelihood that the jurors misunderstood the instructions to permit convictions based on insufficient proof. In one case, reasonable doubt was partially defined as, not a mere possible doubt but one depending on moral evidence such that the jurors could not say they felt an abiding conviction to a moral certainty of the truth of the charge. In the other case, reasonable doubt was defined as a doubt that would not permit an abiding conviction to a moral certainty of the accused's guilt and an actual and substantial doubt not excluded by the strong probabilities of the case.id: 13359
Supreme Court upholds first degree murder conviction even though jury was not required to unanimously agree on one theory.In this capital case, the defendant was convicted under an Arizona statute that characterized first-degree murder as a single crime that did not require the jury to agree on which of the alternative statutory theories <197> premeditated or felony murder <197> applied. Justice Souter, joined by Chief Justice Rehnquist, and Justices O'Connor and Kennedy held that permitting the jury to reach one verdict based on a combination of alternative findings did not violate the unanimous verdict rule. Nevertheless, the plurality found it impossible to lay down any single test for determining when two means are so disparate as to exemplify two inherently separate offenses. Looking to history and widely shared state practices, the court held that the Arizona statute did not violate due process. Justice Scalia concurred, arguing that such a traditional crime as first degree murder, and a traditional mode of submitting it to the jury did not need to pass the court's fundamental fairness analysis. Justices White, Blackmun, Marshall and Stevens dissented.id: 13360
Unanimity instruction is not required where evidence is presented that defendant is the actual perpetrator and that he aided and abetted the crimeDefendant argued the evidence did not establish whether defendants were direct perpetrators or aiders and abettors of the charged murders and, therefore, the court should have instructed the jury that it could not convict defendants of any offense unless it unanimously agreed either that defendants were direct perpetrators of the offense, or they were aiders and abettors. However, when the two theories that defendant was the actual perpetrator and that he was an aider and abettor are based on a single course of conduct, jury unanimity is not required.id: 13362
Unanimity instruction was not required for GBI enhancements where defendants committed one prolonger assault.The trial court was not required to <i>sua sponte</i> instruct the jurors they had to agree which injury or injuries supported each great bodily injury enhancement. Defendant's attack on his victim was one prolonged assault, of which the individual blows and other indignities were inseparable components.id: 13363
Unanimity instruction was not required where the kidnapping was uninterrupted.Defendant was convicted of kidnapping and argued the court erred in failing to give a unanimity instruction sua sponte as there were three distinct movements, any of which could have formed the basis for the jury's verdict. However, the evidence at trial revealed no interruption in defendant's detention of victim. It began when he forced her into the car and ended when the police stopped the car and the victim escaped. Consequently, the kidnapping continued throughout the allegedly separate events singled out by defendant.id: 13364
Unanimity instruction was not required where there was no question as to which act constituted the robbery although defendant's role was unclear.Defendant argued the prosecution asserted two separate acts: Either he entered and robbed the store or he drove the car to the store, and therefore the court erred in failing to instruct sua sponte that the jurors need unanimously agree upon which act they relied in finding him guilty. Defendant was charged with one offense, second degree robbery, based on one event. Witnesses testified the perpetrator entered the store, displayed a gun, took the money from the cash register and fled. However, there was conflicting evidence regarding which specific acts defendant committed during the robbery. It was not necessary that the jurors unanimously agree on whether defendant was the direct perpetrator or aided and abetted the robbery by driving the perpetrator to the store. Therefore, the failure to give CALJIC 17.01 was not erroneous.id: 13365
Moral certainly language in reasonable doubt instruction is not unconstitutionally vague.Defendant argued the court erred by instructing with CALJIC 2.90 (derived from Penal Code section 1096) because the term moral certainty is unconstitutionally vague and permits a jury to vote for conviction based upon a standard of proof less than required under the Fourteenth Amendment. However, the instruction does not transfer true reasonable doubt into a higher degree of doubt and there was no reasonable likelihood that the jury applied the challenged instruction in a way that violated the Constitution.id: 13367
CALJIC 1701 is appropriate where a conviction on a single count may be based on two criminal events rather than two criminal theories.Defendant argued the court erred in failing to instruct sua sponte in the terms of CALJIC 17.01 which requires that in order to return a guilty verdict on the charge all jurors must agree the defendant committed the same act. He argued the instruction was necessary because his robbery conviction could have been based upon one of two theories of criminal responsibility, each dependent on a different finding of fact. However, CALJIC 17.01 is inappropriate in cases where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event. It is appropriate the jurors all agree the defendant is responsible for the same discrete criminal event. The jurors need not agree on the theory of criminality or the theory of criminal participation.id: 13328
Circumstantial evidence instructions did not undermine the instructions on the presumption of innocence and did not create a mandatory conclusive presumption of guilt.Defendant argued the trial court's instructions on circumstantial evidence negated the instructions on the presumption of innocence, as well as the standard of proof beyond a reasonable doubt. However, a reasonable juror would understand that, taken in context, the relevant language of CALJIC 2.01 (and the corresponding language of CALJIC 8.83 and 8.83.1) must be considered in conjunction with the reasonable doubt standard. Thus, the jury could properly find the prosecution's theory as to the interpretation of the circumstantial evidence reasonable and alternate theories favorable to the defense unreasonable, within the meaning of these instructions only if the jury is convinced beyond a reasonable doubt of the accuracy of the prosecution's theory.id: 13329
Court did not err in delivering the modified reasonable doubt instruction deleting references to moral evidence and moral certainty.The trial court gave a reasonable doubt instruction based on a 1994 revision to CALJIC 2.90 which deleted references in the earlier version to moral evidence and moral certainty. The changes in the reasonable doubt instruction were proper and the court did not err in giving the modified instruction.id: 13330
Court did not err in failing to give a unanimity instruction where each count of unlicensed practice of medicine constituted a separate continuous course of conduct.The trial court did not err in failing to instruct the jury sua sponte that it had to unanimously agree on the criminal acts committed where the defendant was charged with several counts of the unlicensed practice of medicine based on postoperative treatment following surgery in Mexico. In each instance defendant's acts of postoperative treatment following each of the surgeries constituted a continuous course of conduct. Each separate course of conduct was a separate crime, and separately charged.id: 13331
Court did not err in failing to give unanimity instruction where there was conflicting evidence as to whether defendant was the direct perpetrator or aided and abetted the burglary.Defendant was charged with burglary. There was conflicting evidence as to whether he was the direct perpetrator or an aider and abettor of the burglary. He argued the court erred in failing to give a unanimity instruction (CALJIC 17.01) to the jury. However, the burglary was one discreet event and the jurors were not required to agree on the theory of criminality.id: 13332
Court did not err in modifying reasonable doubt instruction by defining moral evidence as mortal evidence.The trial court slightly modified the standard reasonable doubt instruction (CALJIC 2.90) by instructing the jury that the phrase moral evidence meant mortal evidence or evidence from people or from the mouths of people. While there is an inherent danger in modifying the standard instruction, the instant instruction was acceptable and did not diminish the prosecution's burden.id: 13333
Court did not err in omitting unanimous verdict instruction where the section 12022(b) allegation listed two weapons because defendant conceded use of one weapon and inclusion of the other was merely surplusage.In recording the guilty verdict the jury found true the allegation that defendant "personally used a deadly and dangerous weapons(s), to wit knife and jack handle, within the meaning of Penal Code section 12022(b)." Defendant argued use of a knife and use of a jack handle are different acts and the court had a sua sponte duty to inform the jurors they must agree on the particular act. However, where it was conceded defendant had personally used a jack handle and that it was a deadly and dangerous weapon - and where the knife use allegation was mere surplusage - the court did not err in omitting CALJIC 17.01.id: 13334
Court did not err in refusing to instruct on the reasonableness of defendant's violent reaction to the police instruction where the proposed instruction was partially incorrect.Appellant argued the court erred in failing to give his requested special instruction tailored to his contention his firing a rifle at police officers as they burst through the front door of his house was a reasonable reaction because he had been severely beaten and robbed by three white men who had kicked his front door open just three days earlier. However, the tendered instruction should have included language requiring the jury to find defendant in fact believed the police officers breaking through his door were the same individuals who had previously assaulted him. It did not and a court has no duty to correct a proposed instruction which is partially incorrect.id: 13335
Court properly rejected as argumentative a special instruction directing the jury to consider specific evidentiary issues in determining the existence of reasonable doubt.The trial court did not err in refusing a requested instruction directing the jury to consider specific evidentiary issues in determining the existence of reasonable doubt as to the identity of the killer. Such an instruction is argumentative because it would invite the jury to draw inferences favorable to the defendant from specified items of evidence on a disputed question of fact, and therefore properly belongs not in instructions, but in arguments of counsel to the jury.id: 13338
Court was not required to give unanimity instruction where the evidence presented two factual scenarios that would support distinct theories of guilt.Defendant argued the court erred in failing to give a unanimity instruction as the prosecution alleged two separate acts of theft. However, it was irrelevant whether defendant obtained the dress by trick or intimidation of the store employees. The end result was that he left the store with property he had not paid for.id: 13339
Court was not required to give the unanimity instruction regarding the torture counts which fell within the continuous course of conduct exception.Defendant was convicted of two counts of torture pursuant to Penal Code section 206. He argued the trial court committed reversible error in failing to instruct sua sponte with CALJIC 17.01 that the jury must unanimously agree on the particular act constituting the basis for its guilty verdict in each count charging the crime of torture. However, considering the nature of torture and the fact that the acts were closely related in time and place, the continuous course of conduct exception was applicable and the court was not required to instruct sua sponte with CALJIC 17.01.id: 13340
Court was not required to instruct on agreement among the jury on the act causing the great bodily injury where the evidence supported only one theory.The trial court did not err in failing to instruct the jury on their agreement as to which act caused the great bodily injury. Appellant argued such instruction was required because there were two alternative theories for the victim's injuries: (1) she fell onto the parking lot because of a struggle with appellant; or (2) appellant struck her. However, the evidence did not permit a reasonable inference that the injuries were sustained during the fall in the parking lot.id: 13341
Courts remain bound to uphold the constitutional validity of the reasonable doubt instruction and its reference to moral certainty until the issue is resolved by the U.S. Supreme Court.Defendant argued he was deprived of due process by those portions of CALJIC 2.90 which define reasonable doubt with reference to moral evidence and moral certainty. He claimed the instruction diluted the prosecution's constitutionally imposed burden of proving the charges beyond a reasonable doubt, and that it lead the jury to believe it could rely on subjective, ethical concerns rather than the facts of the case before it. However, the California courts have consistently upheld the constitutionality of CALJIC 2.90 and remain bound to do so. The court is waiting for a resolution of the issue in <i>Sandoval v. California</i> (1993) __ U.S. __, in which the United States Supreme Court recently granted certiorari.id: 13342
Deleting moral certainty language from reasonable doubt instruction was not erroneous.The trial court's modification of the reasonable doubt instruction - CALJIC 2.90 - deleting the moral certainty language, did not dilute the constitutionally mandated standard of proof.id: 13343
The trial court did not err by failing to give the unanimous verdict instruction in the civil forfeiture action.Juror unanimity is not required for a verdict of forfeiture in civil proceedings where a verdict may be based upon agreement of only three-fourths of the jurors.id: 11598
Illegally prescribing drugs refers to a continuous course of conduct and no unanimity instruction was required.Doctor was charged with illegally prescribing controlled substances to his patients (Health and Safety Code section 11153.) He argued the court erred in failing to give sua sponte a unanimity instruction. However, section 11153 impliedly refers to a course of conduct. The criminal conduct was defendant's continuous practice of improperly prescribing controlled substances to his patients. The fact that there were two theories of guilt - prescribing drugs without a legitimate medical purpose or prescribing drugs to addicts - did not alter the conclusion. Because both theories were based upon the same evidence, no unanimity instruction was required.id: 10738
No unanimity instruction was required as to a single count of forgery involving a single instrument even though the evidence showed different acts of forging and acts of uttering.No unanimity instruction is required as to a single count of forgery involving a single instrument, even though the evidence shows different acts of forging and acts of uttering. Moreover, the statutory inclusion of these acts under the rubric of a single offense does not require a unanimity instruction to avoid a due process violation where the evidence shows both categories of acts in the prosecution of a single count arising out of the forging or uttering of a single instrument.id: 10389
A defendant is not entitled to a unanimous verdict as to which act constituted the underlying felony for purposes of felony murder.Defendant argued the court should have instructed sua sponte that the jurors need unanimously agree on the nature of the lewd or lascivious act he committed to find him guilty of felony murder. However, a defendant is not entitled to a unanimous verdict as to the particular manner in which a felony murder occurred.id: 10180
Trial court did not err in failing to instruct sua sponte with CALJIC 17.01 regarding the forcible rape charged.Defendant was charged with a rape that occurred between June 1, 1985 and August 31, 1985. The trial court did not err in failing to instruct sua sponte with CALJIC 17.01 regarding agreement among the jury of the particular offense committed. Such instruction is not required where the victim testifies to repeated incidents of the same acts of sexual molestation in cases turning solely on whether the jury believes the victim or the defendant.id: 10082
Defendant was not deprived of his right to a unanimous jury where he was convicted of three of eight charged child molest counts and there was no way to determine whether the jury agreed on the same three acts.Defendant was charged with eight counts of committing lewd acts on his 13 year-old stepdaughter from January 1, 1990 to September 11, 1990. He was convicted on three of the eight charges. He argued he was deprived of his constitutional right to have his guilt decided by a unanimous jury because there is no way to determine whether the jury unanimously agreed on the same three specific acts to support those convictions. However, the victim testified that prior to her 14th birthday on September 12, 1990, defendant committed five acts of intercourse, probably ten acts of touching her breasts, and at least three acts of touching her vagina. These acts are all proscribed by Penal Code section 288, subdivision (a) and they occurred within the three-year statute of limitation period. Therefore, the evidence was substantial and instruction of the jury with CALJIC 4.71.5 was sufficient to protect his right to a unanimous jury. Contrary to defendant's claim, there is no requirement the reviewing court be able to determine whether the jury relied upon evidence of one type of lewd act as opposed to another.id: 9946
Court did not err in failing to instruct the jury regarding the burglary that it must agree upon which felony the defendant intended when he entered the victim's apartment.The jury was instructed that defendants were guilty of burglary if they entered the apartment with the intent to steal, falsely imprison, or commit an aggravated assault. The trial court was not required to instruct the jury that it needed to unanimously agree on the basis of the intent in order to return a guilty verdict.id: 9892
Unanimity institution was not required where evidence showed the defendant's roles were the reverse of what the victim testified.Although the victim testified it was defendant who robbed her and codefendant who held a knife to her son's hand, defendant argued their roles were reversed and thus a unanimity instruction was required. However, an aider and abettor is a principal in the offense equally guilty with the perpetrator. It follows that the jurors need not unanimously agree by which statute the defendant attains his status as a principal in the crime. This is especially true where the evidence of mutual participation, coordination, and shared intent of the perpetrators was overwhelming.id: 9645
Court did not err in refusing to instruct the jury that it was required to unanimously agree upon the specific overt act committed in furtherance of each conspiracy.Defendant argued the trial court erred in refusing to instruct the jury to unanimously agree upon the same overt acts committed in furtherance of each conspiracy before finding guilt. However, an overt act of a conspiracy has been held to be part of a theory of the case rather than an actual element of conspiracy. It is not necessary to require the jury to agree on one or more of the several theories presented by the prosecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of the offense.id: 9571
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245