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Name: People v. Hernandez
Case #: E054160
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 06/25/2013

Trial court prejudicially erred in failing to give unanimity instruction where prosecution relied on two separate instances to support a charge of felon in possession of a firearm. A jury convicted appellant of spousal battery, felon in possession of a firearm, and other offenses. On appeal he claimed the court erred in failing to instruct the jury it must be unanimous regarding the gun and ammunition possession charges, as the prosecution failed to elect one of two instances of possession. Held: Counts reversed. The prosecution presented two discrete acts of possession–that appellant fired a gun while at his girlfriend’s home; and, later the same evening, that police found a gun in the car appellant was driving. When there is a risk the jury may divide on two discrete offenses and not agree on any particular crime, a unanimity instruction should be given. Here, instruction was required because the evidence revealed two separate acts, either of which could have constituted the possession offenses. The continuous course of conduct exception, which alleviates the need for a unanimity instruction, did not apply because the two alleged acts of possession were separated by time and space, and different defenses were argued. The error was prejudicial of the different defenses raised to each alleged act.