When a defendant is charged with a single criminal offense but the evidence suggests more than one discrete crime, what is the test for unanimity?

When a defendant is charged with a single criminal offense, but the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. (People v. Russo, supra, 25 Cal.4th at p. 1132.) This requirement "'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.'" (Ibid.) "On the other hand, where the

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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." (Ibid.) A unanimity instruction is required as between discrete crimes, but is not required between theories of a case. Thus, a jury need not be instructed on a determination as to whether the defendant is guilty as a direct perpetrator or as an aider and abettor of that crime. (Russo, at pp. 1132-1133.)

As explained in People v. Russo, supra, 25 Cal.4th at pages 1134 through 1135:

For example, a jury may convict a defendant of first degree murder without making a unanimous determination as to the theories proposed by the prosecution, e.g., the murder was deliberate and premeditated or it was committed during the course of a felony. (See People v. Jenkins (2000) 22 Cal.4th 900, 1024-1025; People v. Beardslee (1991) 53 Cal.3d 68, 92-93.)

Similarly, unanimity is not required "'when the acts alleged are so closely connected as to form part of one transaction.'" (People v. Benavides (2005) 35 Cal.4th 69, 98.) More specifically, "[t]he 'continuous conduct' rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them." (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)

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