Thompson

Defendant was convicted by jury of diversion of construction funds (Pen. Code, § 484b) and petty theft (Pen. Code, § 488). The court struck the theft count and granted defendant probation. On appeal defendant contends there were several instructional errors. We find the failure to give a unanimity instruction when defendant offered differing defenses to various acts that could constitute diversion was prejudicial error. We reverse the judgment.

Factual and Procedural Background

Robert and Sharon Riddle acquired some property in Alta Sierra in Nevada County on which they planned to build a house. At the time they lived 400 miles away in Southern California. They saw a house defendant had built in the area and were impressed. After meeting with defendant, the Riddles entered into three different construction contracts with him.

The first contract was to build an aircraft hangar on the property. The Riddles were satisfied with the hangar. Next the Riddles contracted with defendant for construction of a foundation for a house. Again, the Riddles were satisfied with defendant’s work.

The Riddles and defendant then entered into a contract to build a house. The contract was…