DISCUSSION

Lipscomb argues that the trial court committed reversible error by not instructing with CALRIM No. 3500, because the prosecutor presented evidence of two distinct and separate criminal acts -- the taking of Crazy Glue packets and a lipstick. She relies upon People v. Davis (2005) 36 Cal.4th 510, 562 [prosecutor presented evidence of two separate robberies; defendant had "entirely different" defenses regarding each robbery], and People v. Hernandez (2013) 217 Cal.App.4th 559, 562-563 [prosecutor presented evidence of two distinct acts of firearm possession separated by time and space]. Lipscomb points out that Ruvacalva did not observe her taking the Crazy Glue packets. Pursuant to the federal and California Constitutions, a jury verdict in a criminal prosecution must be unanimous. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) In addition, the jury must unanimously agree that the defendant is guilty of a specific crime. (Ibid.) If the evidence suggests that the defendant may have committed more than one discrete crime, either the prosecutor must elect among the crimes or the court must instruct jurors to agree that the defendant committed the same criminal act. (Ibid.) A unanimity instruction is not required, however, when the alleged acts are so closely connected as to form part of one transaction. (People v. Williams (2013) 56 Cal.4th 630, 682.) The "continuous conduct" rule applies when the defendant offers the same defense to each of the acts and there is no reasonable basis to distinguish between them. (Ibid. [defendant's acts of attempted robbery and robbery occurred close in time and he presented defense that he was not present at the crime scene].) The key to determining whether a unanimity instruction is required depends upon the instruction's purpose. The instruction is appropriate when conviction on a single count could rest on two or more discrete criminal events, but not where multiple theories or acts may form the basis of a

3 guilty verdict on one discrete criminal event. (People v. Hajek (2014) 58 Cal.4th 1144, 1221.) The trial court did not err by not instructing sua sponte regarding unanimity because Lipscomb's acts in taking the lipstick and the Crazy Glue packets were so closely connected as to form part of one transaction. (People v. Curry (2007) 158 Cal.App.4th 766, 782 [no unanimity instruction required where the taking of victim's shoes and phone occurred almost simultaneously].) The acts occurred within 20 minutes at the same CVS pharmacy. Moreover, Lipscomb "merely put the People to their proof" and did not present a defense to either act. (People v. Parsons (1984) 156 Cal.App.3d 1165, 1174.) The continuous conduct rule applies here because Lipscomb did not offer a separate defense to each act. There is also no reasonable basis for the jury to distinguish between the two thefts. (People v. Williams, supra, 56 Cal.4th 630, 682.) People v. Hernandez, supra, 217 Cal.App.4th 559, does not assist Lipscomb. Hernandez involved two separate and distinct acts of firearm possession: the first act where defendant fired a firearm at his girlfriend's house, and the second where a police officer later discovered a loaded firearm in defendant's vehicle. (Id. at pp. 563-566.) The reviewing court concluded that the trial court erred by not instructing regarding unanimity because the two possessions were "separated by time and space," and the defendant presented different defenses to each charge. (Id. at p. 574.) The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

4 Drew E. Edwards, Judge

Superior Court County of Los Angeles

______________________________

Michelle T. Livecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb, Supervising Deputy Attorney General, Jonathan M. Krauss, Deputy Attorney General, for Plaintiff and Respondent.

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