Does the trial court err by failing to give unanimity instruction in a case where there was evidence that a felon in possession of a firearm fired a rifle before police arrived?

California, United States of America


The following excerpt is from The People v. Cortez, B214396, No. BA345395 (Cal. App. 2010):

The trial court here did not err by failing to give a unanimity instruction. Defendant was charged with being a felon in possession of a firearm. His acts comprising that offense were so closely connected in time and place as to form part of one transaction. The evidence was that defendant fired a rifle and then went inside a house. Soon thereafter, defendant, secretly observed by two detectives, exited the rear of the house with the rifle, wrapped in a bag, and placed it next to a trash can. Less than two hours after seeing defendant shoot the rifle, Ruiz identified him at a field showup. Defendant thus fired the rifle and then attempted to conceal it after police arrived; the two acts of possession of the rifle were simply one continuous transaction giving rise to one discrete criminal event. (Cf. People v. Crawford (1982) 131 Cal.App.3d 591 [unanimity instruction was required where four guns were found in defendant's house and defendant's girlfriend testified that one gun belonged to her]; People v. Wolfe (2003) 114 Cal.App.4th 177 [failure to give unanimity instruction was harmless error where there was evidence defendant possessed guns on one day and other guns on another day].)

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