What is the effect of the Court of Appeal's failure to give an unanimity instruction on the theory of first degree murder?

evidence of motive:¹⁵ that the instruction permitted the jury to determine guilt based on motive alone in violation of due process, and that it impermissibly shifted the burden of proof to the defense to prove innocence. To the extent defendant's challenges to CALJIC No. 2.51 are not forfeited for failing to object to the instruction or request it be modified, there was no error. "This court has previously rejected the argument that it is necessary to instruct the jury that motive alone is insufficient to establish guilt." ( People v. Westerfield (2019) 6 Cal.5th 632, 711, 243 Cal.Rptr.3d 18, 433 P.3d 914.) Likewise, "as we have in the past," we reject the argument that "CALJIC

[9 Cal.5th 829]

No. 2.51 lessens the prosecution's burden of proof." ( People v. Tate (2010) 49 Cal.4th 635, 699, 112 Cal.Rptr.3d 156, 234 P.3d 428.)

3. Failure to Give a Unanimity Instruction on Theory of First Degree Murder