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People v. Cortes8/12/2004
orbidden by law, to wit, V.C. 22350 [violation of the basic speed law] and 23109(a) [engaging in a speed contest], and neglected a duty imposed by law, which proximately caused bodily injury to another.' " (Mitchell, supra, at pp. 218-219, fns. omitted.) The court held that even though more than one act or neglected duty was pleaded, separate acts were not involved under the statute and a unanimity instruction was not required. (Id. at p. 220.) Mitchell was cited with approval in People v. McPeters (1992) 2 Cal.4th 1148, 1185 (unanimity instruction not required in prosecution for robbery).
The Mitchell court pointed out that the Supreme Court had held that only one offense is committed where "one volitional act of driving" causes injury to more than one person, and it concluded that "the statute's reference to 'act forbidden by law,' just as in its reference to bodily injury, involves only a definitional refinement of the offense, not a legislative determination that a statutory violation such as unsafe speed or speed contest is a separate act from the standpoint of the gravamen of the offense which is, simply, driving while intoxicated." (Mitchell, supra, 188 Cal.App.3d at p. 221.) The court recognized that "jurors need not be instructed that to return a verdict of guilty they must all agree on the specific theory--it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of the crime charged as it is defined by the statute." (Mitchell, supra, at p. 222; see People v. Pride (1992) 3 Cal.4th 195, 249-250.) Since the unsafe speed and speed contest portions of the charge were "alternate ways of proving a necessary element of the same drunk driving charge," a unanimity instruction is not required.
*10 The Mitchell court further stated that even if the charge in that case could be viewed as encompassing separate acts, driving at an unsafe speed and engaging in a speed contest, this situation also "squarely fits within the 'continuous crime' exception to the rule requiring a unanimity instruction as to each act." Under the continuous crime exception, since there was "no substantial separation in time or place" as to the speeding or speed contest components of the defendant's acts, the defendant committed a continuing offense for which a unanimity instruction was not required. (Mitchell, supra, 188 Cal.App.3d at p. 222.)
Appellant relies on People v. Gary (1987) 189 Cal.App.3d 1212 (Gary ), another case in which the defendant was charged with violating section 23153 where the information enumerated several Vehicle Code violations as acts forbidden by law. There, the court held that a unanimity instruction was not required. The court stated, without analysis, without reference to the continuous crime exception, and without referring to Mitchell, that "if the facts of a case present a situation where different acts could constitute the same element of an offense, the defendant is entitled to a unanimity instruction." (Gary, supra, at p. 1218.)
We believe that Mitchell is the better reasoned case. (Accord, People v. Durkin (1988) 205 Cal.App.3d Supp. 9, 14 & fn. 4 [in vehicular manslaughter prosecution where prosecutor argued that defendant drove in negligent manner and committed seven different infractions, court relied on Mitchell to find unanimity instruction not required; "People v. Gary (1987) 189 Cal.App.3d 1212 is not controlling since in Gary the court did not consider application of the continuous course of conduct exception to the facts of that case"].) The rationale of Mitchell applies whether, as in Mitchell, one act (speeding) violated two Vehicle Code provisions, or whether, as here, wholly different acts were alleged. Because the instances of conduct alleged to constitute the ac
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