Metheney

Appellant was convicted following a jury trial of the crime of accessory after the fact, in violation of Penal Code section 32. 1 He makes several contentions on appeal but we need only discuss one— *558 that the trial court committed prejudicial error when it refused to give appellant’s requested instruction in the form of CALJIC No. 17.01, 2 which would have told the jury that it had to agree unanimously on the act or acts committed by the appellant before he could be found guilty. We accept this contention and reverse the judgment.

The Facts

On the evening of February 18, 1981, the guest of honor at a farewell party, Kim E., and the victim, Lisa P., left the party and went to a neighborhood bar. They stayed at the bar until near closing time, when they went to the parking lot to get into their respective automobiles. A group of motorcyclists, who had been in the bar, were gathered in the parking lot.

Kim was forced onto the back of a motorcycle, which was driven away. Lisa did not know that her friend had gone against her will. When the motorcycle stopped at a signal light a few blocks away, Kim jumped olf and ran back to the parking lot.

Lisa asked the…

I respectfully dissent.

In this case the CALJIC No. 17.01 instruction should have been given if for no reason other than when in doubt, it is usually harmless to give it and may avoid reversal. However, I disagree with the majority conclusion that reversal is required because of its absence. Initially, the evidence and arguments presented at trial did not mandate a 17.01 instruction. First, the “other acts” evidence went to the question of defendant’s intent, not his commission of separate and distinct criminal acts. Second, if indeed attendance at the Mott and Vasquez preliminary hearing and statement to Investigator Anderson constituted separate felonies, then those repeat crimes fell under the “continuous conduct exception” to the requirement of giving CALJIC No. 17.01. Finally, even if the trial court was required to give CALJIC No. 17.01, its absence here did not prejudice defendant.

Before addressing the instructional issue I note my concurrence with the majority that the dismissal of charges against Mott and Vasquez did not invalidate the completed trial and conviction of appellant. Penal Code section 972 survives defendant’s due process challenge. Also, more pragmatic…

FRANSON, Acting P.J.

Appellant was convicted following a jury trial of the crime of accessory after the fact, in violation of Penal Code section 32. [1] He makes several contentions on appeal but we need only discuss one — that the trial court committed prejudicial error when it refused to give appellant's requested instruction in the form of CALJIC No. 17.01, [2] which would have told the jury that it had to agree unanimously on the act or acts committed by the appellant before he could be found guilty. We accept this contention and reverse the judgment.

On the evening of February 18, 1981, the guest of honor at a farewell party, Kim E., and the victim, Lisa P., left the party and went to a neighborhood bar. They stayed at the bar until near closing time, when they went to the parking lot to get into their respective automobiles. A group of motorcyclists, who had been in the bar, were gathered in the parking lot.

Kim was forced onto the back of a motorcycle, which was driven away. Lisa did not know that her friend had gone against her will. When the motorcycle stopped at a signal light a few blocks away, Kim jumped off and ran back to the parking lot.

Lisa asked the…