Norman

In this case, we confront the most common species of instructional error in criminal cases: the failure to give a jury unanimity instruction. Here, we cannot find the error harmless and therefore reverse the judgment.

A jury found defendant Khari Norman guilty of receiving stolen property (Pen. Code, § 496, subd. (a)) and petty theft with a prior (§ 666). Defendant contends there was insufficient evidence to support his conviction for theft and the trial court erred in failing to provide the jury with a unanimity instruction. We agree with his second contention and reverse the judgment.

BACKGROUND

In the early morning hours of February 13, 2004, James Stanger heard noises outside his apartment. He looked outside and saw two people, defendant and Ernest Sheets, around the apartment’s cluster mailboxes. Those cluster mailboxes served 80 to 100 mail patrons. Stanger called neighborhood security and, when they did not respond, he called the police.

During the next 60 to 90 minutes, Stanger heard “the banging of the mailboxes and the doors of the mailboxes.” He would periodically look outside and confirm that the two men were still there. When the police finally arrived,…