Unanimity Instruction Case in California
In People v. Smith (2005) 132 Cal.App.4th 1537, the defendant was charged with 10 counts of molesting the victim. The charged crimes included three different types of molestation. The jury convicted the defendant of only one count.
The trial court rejected the defendant's request for a specific acts unanimity instruction. (Id. at pp. 1542-1543.) Instead, the court gave a modified version of the unanimity instruction, CALJIC No. 4.71.5, in which the court instructed the jury that in order to find the defendant guilty, the jury had to agree unanimously that the prosecution proved the defendant committed all the acts described by the victim. (Smith, supra, at p. 1543.)
The Smith court concluded the modified instruction did not comply with Jones because the evidence "sufficiently differentiated between different types, locations, and episodes of molestation as to which a jury might (and here did) disagree as to the particular acts constituting the crime defendant is convicted of committing. Consequently, the trial court erred when it failed, in conformity with Jones, to give a specific acts unanimity instruction in addition to an instruction allowing a conviction if the jurors unanimously agreed 'the defendant committed all the acts described by the victim.'" (Smith, supra, 132 Cal.App.4th at p. 1544, quoting Jones, supra, 51 Cal.3d at pp. 321-322.)
In Smith, the verdicts on 10 charged counts reflected that the jury disregarded the trial court's modified unanimity instruction and the prosecutor's argument by finding the defendant guilty of only one count, unable to reach a verdict on a second count, and not guilty on the remaining eight counts. This meant the jury did not follow the instruction that to return a guilty verdict the jurors had to agree unanimously that the defendant committed all the acts described by the victim.
The Smith court concluded that the error in failing to give a specific unanimity instruction was prejudicial because the not guilty verdicts as to eight counts could be rationally attributed to the jury concluding that the victim's generalized recollection of the molestations was insufficient to meet the standard of proof beyond a reasonable doubt. (Smith, supra, 132 Cal.App.4th at 1547.)