What is the test for giving a jury a unanimity instruction in a criminal case?

(1) the prosecution must elect among the crimes or (2) the trial court must instruct the jury that it must unanimously agree that the defendant committed the same criminal act. [Citations.] The unanimity instruction must be given sua sponte, even in the absence of a defense request to give the instruction. [Citations.]" (People v. Hernandez (2013) 217 Cal.App.4th 559, 569.)

The purpose of a unanimity instruction, such as CALCRIM No. 3500, is to prevent jurors from convicting a defendant based on different instances of conduct. (People v. Hernandez, supra, 217 Cal.App.4th at p. 569.) Giving a unanimity instruction "'"is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed."' [Citations.] Moreover, a unanimity instruction is '"designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count."' [Citation.] Thus, the instruction is given to ensure that all 12 jurors unanimously agree, and are unanimously convinced beyond a reasonable doubt, which instance of conduct constitutes the charged offense." (Ibid.)

"The failure to give a unanimity instruction 'has the effect of lowering the prosecution's burden of proof.' [Citation.] Accordingly, a failure to give the instruction when it is warranted abridges the defendant's right to due process, as it runs the risk of a conviction when there is not proof beyond a reasonable doubt." (People v. Hernandez, supra, 217 Cal.App.4th at p. 570.) In deciding whether to give the instruction, the trial

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