Adams

In a joint trial defendant Michael Delano Adams was found guilty of murder in the second degree and defendant Byron Jae Peterson was found guilty of involuntary manslaughter. In addition it was found true both men proximately caused the death of a senior citizen within the meaning of Penal Code 2 section 368, subdivision (b)(3)(A). Both were sentenced to prison. Adams and Peterson appeal, arguing the evidence was insufficient to support a true finding on the killing of an elderly person allegation, the trial court erred in failing to instruct in the terms of CALJIC No. 17.01 that unanimous jury agreement was required concerning the act resulting in death, and the trial court erred in denying Adams’s Marsden motion (People v. Marsden (1970) 2 Cal.3d 118 [ 84 Cal.Rptr. 156 , 465 P.2d 44 ]).

Facts

A. Prosecution Case

On January 18, 1999, Robert Stratton and Adams went to the Chee Chee Club, where Byron Peterson introduced himself to the men and joined them for cocktails. The men were overheard talking about having sex. Later, the three left the bar and drove together in Stratton’s recreational vehicle (RV) to a liquor store.

Sometime later, Richard Cowan, an acquaintance…