What is the law on unanimity in a criminal case where the evidence of a crime is only a single crime but the evidence supports the theory of the crime?

California, United States of America


The following excerpt is from People v. Feeter, H039750 (Cal. App. 2015):

"On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty. (See generally People v. Jenkins (2000) 22 Cal.4th 900, 1024-1026 . . . .) 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. Burgalry requires an entry with a specified intent. (Pen. Code, 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." (Russo, supra, 25 Cal.4th at pp. 1132-1133.)

"The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a 'particular crime' (People v. Diedrich, supra, 31 Cal.3d at p. 281); it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed [the defendant]

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