People v. Smith

Confronting a “perfect storm” of prejudicial legal error, we face, yet again, the consequences of the inexplicable reluctance of a prosecutor to request, and a trial court to give, a unanimity instruction when there is a risk that the defendant will be convicted even though there is no agreement among the jurors as to which act constituting the crime defendant committed. Here, the result is not only a reversal of the one count defendant was convicted of committing, but also a likely dismissal of charges should the prosecutor elect to retry the defendant. In arriving at our conclusions, we address when a specific acts unanimity instruction should be given, the standard of review to use in measuring any prejudice caused by the failure to give such an instruction, and the procedure to follow upon retrial if defendant enters a plea of once in jeopardy.

Defendant was charged with 10 counts of lewd and lascivious conduct with V.P., a child under 14 years of age. (Pen. Code, § 288, subd. (a).) Attached to each count was an allegation that defendant engaged in substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8). The prosecution used identical…