Gordon

In this appeal we consider a host of questions arising from the now familiar case in which the evidence establishes more crimes than were charged. Here defendant Clyde D. Gordon was convicted of one count of sodomy with a person under 16 years of age by a person over the age of 21 (Pen. Code, § 286, subd. (b)(2)), and three counts of lewd and lascivious conduct with a child under 14 years of age (Pen. Code, § 288, subd. (a)). Sentenced to state prison for concurrent terms of five years on each of the four felonies, he appeals. On appeal defendant contends: (1) the sodomy count was barred by the statute of limitations; (2) as to the sodomy count and one count of lewd and lascivious conduct, the prosecution did not elect which acts it was relying upon to convict and, further, as to the sodomy count, the trial court failed to instruct on its own motion that the jury must unanimously agree on the specific act forming the basis of the verdict; (3) as to the sodomy count and one count of lewd and lascivious conduct, instructing the jury with CALJIC No. 4.71 constituted prejudicial error; (4) the sodomy conviction barred a concomitant conviction for a lewd and lascivious act…

I concur in the majority opinion. I write separately to address in greater detail defendant’s contention that the prosecutor had a sua sponte duty to elect, at the outset of trial, the act relied upon by the prosecution to obtain a conviction on each count pleaded in the information.

Where the information charges an offense, and where the evidence at trial shows more than one act of the kind charged within the timeframe pleaded in the information, either the election of a specific act by the prosecution, *866 or an instruction by the court selecting the first act upon which evidence was introduced, will prevent a nonunanimous verdict, because the jury is told to determine guilt or innocence upon the single act selected. (See, e.g., People v. Metheney (1984) 154 Cal.App.3d 555, 563 [ 201 Cal.Rptr. 281 ]; People v. Epps (1981) 122 Cal.App.3d 691, 701-702 [ 176 Cal.Rptr. 332 ].) I agree with the majority that a jury instruction in the form of CALJIC No. 17.01 equally cures any problems with a nonunanimous verdict, because the jury is told they must all agree on the same act. To that extent, I also agree with People v. Dunnahoo (1984) 152 Cal.App.3d 561 , at page 570 [ 199 Cal.Rptr.…

In this appeal we consider a host of questions arising from the now familiar case in which the evidence establishes more crimes than were charged. Here defendant Clyde D. Gordon was convicted of one count of sodomy with a person under 16 years of age by a person over the age of 21 (Pen. Code, § 286, subd. (b)(2)), and three counts of lewd and lascivious conduct with a child under 14 years of age (Pen. Code, § 288, subd. (a)). Sentenced to state prison for concurrent terms of five years on each of the four felonies, he appeals. On appeal defendant contends: (1) the sodomy count was barred by the statute of limitations; (2) as to the sodomy count and one count of lewd and lascivious conduct, the prosecution did not elect which acts it was relying upon to convict and, further, as to the sodomy count, the trial court failed to instruct on its own motion that the jury must unanimously agree on the specific act forming the basis of the verdict; (3) as to the sodomy count and one count of lewd and lascivious conduct, instructing the jury with CALJIC No. 4.71 constituted prejudicial error; (4) the sodomy conviction barred a concomitant conviction for a lewd and…