217 Cal. App. 4th 559
Cal. Ct. App.2013Background
- Hernandez was convicted by jury of battery of a cohabitant, witness intimidation, unlawful possession of firearm, and unlawful possession of ammunition; enhancements for priors.
- Sentence: 25 years to life on counts 3, 5, and 6; 1 year on count 1; consecutive on 3 and 1; 6 concurrent to 5.
- On appeal, Hernandez challenges counts 5 and 6 for unlawful possession, arguing two possible possession instances separated in time/space with different defenses.
- The court reverses counts 5 and 6 for unlawful possession due to trial court’s failure to give a sua sponte unanimity instruction; holds the error not harmless.
- Facts center on events of April 5–8, 2009, including a domestic-violence incident, a vehicle stop, and a gun found hidden under the hood of a car; evidence suggests two distinct possession events.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was a unanimity instruction required sua sponte? | People argues multiple possession acts require unanimity. | Hernandez contends two separate possessory acts warrant unanimity. | Yes; failure to give unanimity instruction was error. |
| Was the error harmless under Chapman or Watson? | People contends nonunanimous verdict could follow from any act. | Hernandez argues separate defenses create a risk of nonunanimous conviction. | Not harmless under Chapman; requires reversal. |
Key Cases Cited
- People v. Shaw, 97 Cal.App.4th 833 (Cal. Ct. App. 2002) (instructional error reviewed de novo; unanimity principle cited)
- People v. Russo, 25 Cal.4th 1124 (Cal. 2001) (unanimity when multiple acts possible; jury must agree on same act)
- People v. Brown, 42 Cal.App.4th 1493 (Cal. Ct. App. 1996) (unanimity required when multiple offenses possible)
- People v. Riel, 22 Cal.4th 1153 (Cal. 2000) (unanimity instruction sua sponte required)
- People v. Carrera, 49 Cal.3d 291 (Cal. 1989) (role of unanimity in multi-act scenarios)
- People v. Norman, 157 Cal.App.4th 460 (Cal. Ct. App. 2007) (unanimity where multiple discrete acts; election discussed)
- People v. Flores, 157 Cal.App.4th 216 (Cal. Ct. App. 2007) (continuous course of conduct exception; same act not requiring unanimity)
- People v. Percelle, 126 Cal.App.4th 164 (Cal. Ct. App. 2005) (continuous conduct exception; same defense to multiple acts)
- People v. Crawford, 131 Cal.App.3d 591 (Cal. Ct. App. 1982) (space-fragmented possession supports unanimity requirement)
- People v. Wolfe, 114 Cal.App.4th 177 (Cal. Ct. App. 2003) (unanimity error not harmless where unitary defense not applicable)
- People v. Thompson, 36 Cal.App.4th 843 (Cal. Ct. App. 1995) (unanimity error not harmless when different defenses to acts)
- People v. Diedrich, 31 Cal.3d 263 (Cal. 1982) (harmful/unharmful analysis under Chapman)
- People v. Smith, 132 Cal.App.4th 1537 (Cal. Ct. App. 2005) (discussed in Chapman/harmless error context)
- People v. Collins, 17 Cal.3d 687 (Cal. 1976) (juror unanimity constitutional baseline)