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Name: People v. Datt
Case #: H033079
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 06/17/2010
Summary

To convict on a charge of reckless evading (Veh. Code, sec. 2800.2, subd. (a)), a jury does not have to unanimously agree on any three particular Vehicle Code violations required to satisfy the “willful or wanton” element of the charge. Trial counsel asked that CALCRIM No. 12.85, the instruction on reckless evading, be modified to advise the jury it must unanimously agree which three Vehicle Code violations supported the “willful and wanton” element of the crime. The court refused the request. The refused modification was alleged as appellate error. The appellate court held juror unanimity is not required on this point. Although the jury must unanimously agree as to a single discrete crime, unanimity is not required as to the exact way the single crime was committed. Here, the discrete criminal event was flight from pursuit. They did not need to agree on the exact way the flight from pursuit was in willful or wanton disregard for the safety of others. Moreover, there is a continuous course of conduct exception to the unanimity instruction. Here, all the Vehicle Code violations were closely connected in time so they were part of a single transaction.
A defense attorney need not present expert testimony on eyewitness identification in every case an identity defense is presented and eyewitness identification is uncorroborated. The second contention was IAC for failure to present an expert on the unreliability of eyewitness testimony where the officer who identified appellant had first described him as Black, but he was actually of Indian or Middle Eastern descent. The court rejected the argument which was based on a declaration from another defense attorney saying it would have been reasonable to consult with an expert. Here, appellant did not even show that defense counsel did not consult with an expert, much less show that expert would have been able to provide favorable testimony.