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People v. Lopez10/19/2004
need not reach the question whether a legal necessity compelled the first jury's discharge.
B. No Unanimity Instruction Was Required on Counts I, II, or III
Defendant contends the trial court erred in failing to give a unanimity instruction (CALJIC No. 17.01) [FN4] on counts I, II, and III. He argues that the prosecutor relied on two "separate and distinct acts" to prove each count: (1) a violation of Vehicle Code section 21658, subdivision (a) (failure to drive within one lane) and/or (2) Vehicle Code section 22350 (basic speed law). We conclude that no unanimity instruction was required on any of the counts because the evidence showed that defendant simultaneously violated both Vehicle Code sections; he was speeding as he drove off the freeway, causing Valenzuela's death and great bodily injuries to other passengers.
FN4. CALJIC No. 17.01 reads as follows: "The defendant is accused of having committed the crime of _______ [in Count __ ]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act][or] [omission] upon which a conviction [on Count __ ] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he][she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count __ ], all jurors must agree that [he][she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act][or] [omission] agreed upon be stated in your verdict."
A unanimity instruction must be given sua sponte where the evidence adduced at trial shows that more than one act was committed which could support an element of a charged offense, and the prosecutor has not relied on any single act. (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.) But "no unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction...." (Id. at p. 275; People v. Rae (2002) 102 Cal.App.4th 116, 122.) Similarly, a unanimity instruction is not required when there is no danger that jurors will rely on different acts in finding a defendant guilty. (People v. Riel (2000) 22 Cal.4th 1153, 1199 [no unanimity instruction required on first degree robbery-murder charge because testimony established that either two robberies or none occurred].)
Here, the evidence unequivocally showed that defendant simultaneously violated both Vehicle Code sections; he was speeding as he drove off the freeway. Arellano testified that as he was driving at 70 miles per hour, defendant's car approached him from the rear "pretty fast," then drove off the freeway. Thus, there was no danger that some of the jurors could have relied on one Vehicle Code section, but not the other, in finding defendant guilty on counts I, II, or III. Accordingly, the trial court did not err in failing to give CALJIC No. 17.01 on counts I, II, or III.
DISPOSITION
*5 The judgment is affirmed.
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