Failure to Give a Unanimity Jury Instruction
In People v. Brown (1996) 42 Cal.App.4th 1493, the defendant was charged with two counts of lewd and lascivious conduct with a minor.
The testimony presented three different acts over a two-day period that could have supported the charges. the appellate court held the trial court erred in failing to give a unanimity instruction, but concluded the error was harmless. ( Id. at p. 1501.)
The court noted that the important question was whether there was anything in the record to discriminate between the two incidents so the jury could infer that one, but not both, incidents occurred. ( Id. at p. 1502.) "To state it slightly differently, in order 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 acts as there are charged crimes. . . ." (Ibid.)
The court concluded that there was no such evidence and found the error to give the unanimity instruction harmless beyond a reasonable doubt.