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People v. Madden2/24/1981
COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT
Crim. No. 4097
1981.CA.40956 ; 116 Cal. App. 3d 212; 171 Cal. Rptr. 897
February 24, 1981
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAMES R. MADDEN ET AL., DEFENDANTS AND APPELLANTS
Superior Court of Stanislaus County, No. 154047, Norman S. Reid, Judge.
Alan M. Caplan and Quin Denvir, State Public Defender, under appointments by the Court of Appeal, and Tom Lundy, Deputy State Public Defender, for Defendants and Appellants.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Nancy Sweet and Charles J. James, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Hopper, Acting P. J., with Zenovich, J., and Stone (w. A.), J., concurring.
Hopper
Where evidence is introduced as to several criminal acts of oral copulation, all of which occurred within a relatively short time span but an accused is not charged with a violation of all of those acts, does the trial court commit reversible error in not giving a sua sponte instruction stating that the jurors must all agree that the accused committed the same act or acts? Yes. That issue (along with other contentions) arises out of an appeal by appellants James R. Madden and Jerry Vernacchio (hereinafter respectively Madden and Vernacchio) from conviction after jury trial of certain unlawful sexual acts (Madden of two counts of forcible sodomy and two counts of forcible oral copulation, and Vernacchio of one count of forcible oral copulation).
The sordid factual details need not be set forth in full. As to Vernacchio there was evidence, if believed by the jury, of a minimum of two acts of forcible oral copulation in the Stanislaus County jail. Only one
act was charged. As to Madden there was evidence, if believed by the jury, of two acts of forcible sodomy (both charged) and a minimum of three acts of forcible oral copulation with only two of such acts being charged. At no time, as to either Madden or Vernacchio, did the prosecutor make an election with respect to which act or acts of oral copulation defendants were charged. Similarly the jury was not instructed in the language of CALJIC No. 17.01 or similar language that the jury had to agree upon the particular act or acts.
Vernacchio contends the trial court should have, sua sponte, instructed the jury that a finding of guilt requires the jury to all agree that the particular accused committed the same act or acts (see, e.g., CALJIC No. 4.71.5).
People v. Sedeno (1974) 10 Cal. 3d 703, 715f [112 Cal. Rptr. 1, 518 P.2d 913], notes that in criminal cases a trial court must instruct, even in the absence of a request, on those general principles of law which are closely and openly connected with the facts before the court and which are necessary for the jury's understanding of the case.
Just as juries must be instructed on lesser included offenses and defenses such as diminished capacity, the jury must be instructed on certain principles of law which control how they approach their task. For example, juries must be told the People have the burden of proving a defendant guilty and that the evidence must convince them of the defendant's guilt beyond a reasonable doubt. (Cf. In re Winship (1
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