Specific Unanimity Jury Instruction

CALJIC No. 17.01 is the standard instruction regarding the principle of jury unanimity. It provides in its entirety: "The defendant is accused of having committed the crime of [in Count]. the prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict." The Use Note for this instruction acknowledges a conflict of authority as to whether it is required to be given as to the finding of an overt act in conspiracy cases. It provides that if the trial court concludes that it should be given in such cases, the word "overt" is to be inserted before "act" and the word "omissions" should be deleted wherever found. (Use Note to CALJIC 17.01 (6th ed. 1997) p. 563.) Several cases hold that unanimity is not required on a single "overt act" to support a conspiracy conviction because the agreement constitutes a punishable conspiracy. The overt act is part of the theory of the case, not an act constituting the offense. for this reason, the giving of CALJIC No. 17.01 is not required in a conspiracy case. (See, e.g., People v. Jones (1986) 180 Cal. App. 3d 509, 516, 225 Cal. Rptr. 697; People v. Cribas (1991) 231 Cal. App. 3d 596, 611-612, 282 Cal. Rptr. 538; People v. Godinez (1993) 17 Cal. App. 4th 1363, 1367; People v. Von Villas (1992) 11 Cal. App. 4th 175, 233-235.) People v. Jones, supra, was the first to tackle the question of whether the trial court should have instructed the jury sua sponte that it was required to agree upon the overt act committed in furtherance of the conspiracy (CALJIC No. 17.01). The defendant in Jones was convicted of kidnapping, robbery and conspiracy to commit robbery. (180 Cal. App. 3d at p. 511, 225 Cal. Rptr. 697.) Jones found no error, explaining as follows: "Where a defendant is prosecuted for violation of a statute under which any of several different acts would constitute the offense, the jury must be instructed they must agree on at least one of the acts committed by the defendant which constitutes the offense. However, the jury need not agree on the 'theory' of the crime, the reason why the act is unlawful. Thus, for example, where a defendant is charged with burglary, which requires an unlawful entry with the intent to commit a felony or theft, the jurors need only be unanimous in finding that a felonious entry took place, not the particular felony intended. "In the case of conspiracy, Penal Code section 182 provides: 'If two or more persons conspire: 1. to commit any crime .... They are punishable [by one of the listed punishments.]' Section 184 provides: 'No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement ....' "The elements of conspiracy are most often defined as (1) an agreement to commit a crime, and (2) an overt act done in furtherance of the agreement. While the overt act is considered an element of the crime, it need not be committed by the defendant, but may be committed by any of the conspirators [citations] and it need not be criminal in nature, so long as it is done in pursuit of the conspiracy. "The purpose of the overt act requirement is to allow the conspirators the opportunity to reconsider their agreement and terminate it to avoid punishment for conspiracy. The overt act also must be proved 'in order to show that an indictable conspiracy exists,' in that 'evil thoughts alone cannot constitute a criminal offense.' "There are cases, however, which specify it is the agreement itself which constitutes a punishable conspiracy; the overt act merely establishes the legal existence of a criminal conspiracy. This conclusion is logical in light of the stated purposes for requiring the overt act: allowing termination of the agreement to avoid punishment and requiring proof of an intent to act on the evil thoughts harbored by the conspirators. It also is logical in light of the Penal Code, which in section 182 provides punishment for conspiracy and in section 184 provides an agreement amounts to a conspiracy when the overt act is done. Thus, People v. George (1968) 257 Cal. App. 2d 805, 808, 65 Cal. Rptr. 368 ... concludes: 'In a conspiracy, the agreement to commit an unlawful act is not criminal until an overt act is committed, but when this happens and the association becomes an active force, it is the agreement, not the overt act, which is punishable ....' (Italics original.) "Inasmuch as the overt act, though required to establish the existence of a conspiracy, is not an actual element of the crime, it follows that the jury only need be unanimous in finding an overt act was done in furtherance of the conspiracy, not in finding a particular overt act was done. Inasmuch as the overt act need not actually be illegal or committed by the defendant, it is not a specific act committed by the defendant as to which the jury must agree. Hence, the overt act is part of the 'theory' of the case, not an act constituting the offense. For the foregoing reasons, we hold a trial court need not instruct the jury they must unanimously agree as to the overt act done in pursuance of a conspiracy...." (People v. Jones, supra, 180 Cal. App. 3d at pp. 515-517.) A number of other cases have followed the reasoning in Jones. People v. Cribas, supra, involved a defendant convicted of rape, bribery of witnesses and conspiring with his brother to bribe witnesses. (231 Cal. App. 3d at p. 599.) The defendant objected to the trial court's failure to instruct, sua sponte, pursuant to CALJIC No. 17.01, that the jury had to agree unanimously on the overt act or acts underlying the conspiracy charge. The court in Cribas relied on the reasoning set forth in Jones, supra, and determined that a specific unanimity instruction on overt acts was not required. (People v. Cribas, supra, at p. 611.) The court further stated,"CALJIC Nos. 6.10 and 17.50 sufficiently apprised the jury of its duties. CALJIC No. 6.10 told the jury that proof of a conspiracy requires proof of at least one overt act. CALJIC No. 17.50 advised that all 12 jurors had to agree on a decision and to any findings in their verdict. 'These most specific instructions must be viewed in conjunction with the unqualified requirements that proof be made beyond a reasonable doubt as to each element of an offense and that the verdict be unanimous. There is no inadequacy in the instruction given.' ( People v. Skelton (1980) 109 Cal. App. 3d 691, 717, 167 Cal. Rptr. 636 ....)" ( People v. Cribas, supra, 231 Cal. App. 3d at p. 612.) In People v. Godinez, supra, the defendant was found guilty of attempted murder and conspiracy to commit murder. The defendant claimed his conspiracy conviction should have been reversed because the trial court refused to instruct the jurors that they must unanimously agree on at least one overt act. the court in Godinez disagreed, relying upon the reasoning in Jones. (People v. Godinez, supra, 17 Cal. App. 4th at p. 1367.) The court in Godinez also noted that even if the unanimity instruction were required, by finding the defendant guilty of attempted murder, as charged in the information, and guilty of conspiracy, the jurors must have been unanimous at least as to the commission of overt act No. 6. The information charged that on January 19, 1989, the defendant attempted to murder four named individuals. Overt act No. 6 was that on January 19, 1989, the defendant and other unnamed conspirators attempted to kill these same named individuals. ( People v. Godinez, supra, 17 Cal. App. 4th at p. 1367.) In People v. Von Villas, supra, the defendant was convicted of murder and conspiracy to commit murder. (11 Cal. App. 4th at p. 190.) The defendant argued the trial court erred when it complied with Jones and refused to instruct the jury to unanimously agree upon the same overt acts committed in furtherance of the conspiracy before finding guilt. the defendant argued that since the commission of an overt act was an essential element of conspiracy, the failure to give such an instruction was error. (11 Cal. App. 4th at pp. 233-234.) As explained in Von Villas, "An overt act of a conspiracy has been held to be part of the 'theory' of the case rather than an actual element of conspiracy [citations]." (11 Cal. App. 4th at p. 234.) According to Von Villas, this distinction is significant because it is not necessary to require the jury to agree on one or more of the several theories presented by the prosecution. Rather, it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of the offense. (Ibid.) There is, however, contrary authority which, in dicta, indicates that an overt act is subject to the unanimity requirement, based on the understanding that an overt act is an element of conspiracy. ( People v. Cribas, supra, 231 Cal. App. 3d at pp. 611-612; People v. Ramirez (1987) 189 Cal. App. 3d 603, 611-615, 233 Cal. Rptr. 645; People v. Brown (1991) 226 Cal. App. 3d 1361, 1369, 277 Cal. Rptr. 309.) This court's decision in People v. Brown, supra, is relied on by appellant and mentioned in several cases as one which supports the contrary view of that expressed in Jones et al. In People v. Ramirez, supra, 189 Cal. App. 3d 603, the defendants argued their conspiracy convictions should be reversed because the jury was not instructed that it was required to unanimously agree upon which overt act was committed in furtherance of the conspiracy. The court in Ramirez relied upon this court's decision in Feagles v. Superior Court (1970) 11 Cal. App. 3d 735, 739, 90 Cal. Rptr. 197, in which we held that the commission of an overt act was an essential element of conspiracy. While making no mention of the decision in Jones, the court in Ramirez ultimately found that any failure to give the unanimity instruction under the facts of the case was harmless. (People v. Ramirez, supra, 189 Cal. App. 3d at pp. 611, 613-615.) In Ramirez, CALJIC Nos. 6.10 and 17.50 were given. the defendants alleged these instructions left room for jurors to convict although disagreeing which overt act was committed in furtherance of the conspiracy, and that an instruction like CALJIC No. 17.01, specifically directing unanimity on the overt act element, should have been given sua sponte. ( People v. Ramirez, supra, 189 Cal. App. 3d at p. 612.)