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Name: People v. Baughman
Case #: C050147
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/29/2007
Subsequent History: 6/27/07 Cunningham rev. gr/hold: S152470

The trial court did not err by failing to instruct the jury with a specific acts unanimity instruction as to the charged incest count. Appellant was charged with one count of incest alleged to have occurred between December 1, 2003 and September 30, 2004. The evidence presented consisted of at least two specific instances, as well as testimony it occurred weekly for nine months. The prosecution did not select any specific act to prove the charge. The court instructed the jury with a version of CALJIC 4.71.5, which informed them that in order to find appellant guilty, it must unanimously agree upon all of the acts described by the victim within the period alleged. On appeal, appellant contended that the instruction was inadequate to inform the jury that they must unanimously agree on the acts constituting the alleged crimes. He contended that the court should have given the version of the instruction which requires an agreement on specific acts. The appellate court disagreed and found no error. While the specific acts version of CALJIC 4.71.5 might have been more appropriate, the jury was faced with either believing the victim or appellant. The instruction told them that they must agree on all the acts, which is a much heavier burden than requiring agreement on a particular act. The jury is presumed to have complied with the instruction given.