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Name: People v. Milosavljevic
Case #: D055327
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/06/2010

A jury must agree unanimously the defendant is guilty of a specific crime and when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. Appellant was charged with 57 counts alleging various crimes, including sex offenses and administering an intoxicating agent with intent to commit a felony. He was convicted of 38 counts and enhancements, including count 52 alleging administering an intoxicating agent, and sentenced to 940-years-to-life in prison. On appeal, he contended the trial court erred by failing sua sponte to give an unanimity instruction on count 52 requiring the jury to agree on the same criminal act constituting the offense. The victim had testified to numerous times when appellant forced her to take Seroquel, or pills, and then sexually assaulted her. The appellate court agreed with the contention – because the evidence could support findings that appellant committed multiple acts on different occasions, any of which could have supported the guilty finding on count 52, the court erred by failing to instruct the jurors that they had to agree on the specific act constituting the offense alleged in count 52. Under Chapman v. Californina (1967) 386 U.S. 18, the error was not harmless beyond a reasonable doubt and the conviction on count 52 was reversed.