California, United States of America
The following excerpt is from People v. Behill, F074635 (Cal. App. 2018):
the defendant is guilty. [Citation.] The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. ( 459.) If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require the unanimity instruction. [Citation.]" (People v. Russo, supra, 25 Cal.4th at pp. 1132-1133.) Similarly, this is not a case where the evidence showed appellant shot at one victim on Elm Street on Tuesday and another on Maple Street on Wednesday. This was a single act, and whether appellant intended to kill one victim, another victim, or any victim in the residence with that single act was, under these facts, merely the theory of the offense, and would not require unanimity.
B. Special Instruction # 2
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