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 VOLUME 13 - CHAPTER 273
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273.7 When Is Jury Unanimity Instruction Not Required?

    273.7.2 Continuing Course Of Conduct Exception To Jury Unanimity Requirement

    273.7.2.1 Continuing Course Of Conduct Exception To Jury Unanimity Requirement: General Principles
    273.7.2.2 Jury Unanimity: Overcoming The Continuing Course Of Conduct Exception
    273.7.2.3 Jury Unanimity: Continuous Conduct Exception Not Applicable Where Alleged Acts Are Subject To Different Defenses
    273.7.2.4 Jury Unanimity: "Continuing Course Of Conduct: Exceptions May Violate Due Process

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PRACTICE NOTE: In some jurisdictions a "continuous course of conduct" exception exists, under which jurors need not agree unanimously as to each component act or predicate offense, when convicting for a continuous course of conduct crime. (See e.g., People v. Diedrich (CA 1982) 31 C3d 263, 282 [182 CR 354].) Offenses subject to this exception fall into two general categories.

    The first category consists of offenses which by statutory definition contemplate a series of acts over a period of time. Examples include stalking (State v. Hoxie (TN 1998) 963 SW2d 737, 743), telephone harassment, (Id.), habitual child molestation (see detailed discussion, FORECITE National™ 273.10.4.2 [Resident Child Molester Statute (Continuing Pattern Of Sexual Abuse)]), criminal street gang participation (People v. Funes (CA 1994) 23 CA4th 1506, 1525 [28 CR2d 758]), spousal battery (People v. Thompson (CA 1984) 160 CA3d 220, 225-26 [206 CR 516]) pandering (People v. White (CA 1979) 89 CA3d 143, 151 [152 CR 312]), and child abuse (People v. Ewing (CA 1977) 72 CA3d 714, 717 [140 CR 299]).

    The second category consists of offenses in which acts are committed so closely in time that they are adjudged to be part of a single criminal transaction and, hence, to constitute a single offense. (Diedrich, 31 C3d at 282; People v. Jenkins (CA 1994) 29 CA4th 287, 299-300 [34 CR2d 483] [continuous conduct exception is applicable to a charge of torture for acts committed over a period of time]; People v. Haynes (CA 1998) 61 CA4th 1282, 1296 [72 CR2d 143] [continuous conduct exception applied where two encounters were just minutes and blocks apart and involved the same property; the acts were part of a single objective of getting all the victim's cash]; State v. Lomagro (WI 1983) 335 NW2d 583, 589; but see FORECITE National™  273.7.2.2 [Overcoming The Continuing Course Of Conduct Exception].)

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].     

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PRACTICE NOTE: The "continuous conduct" exception does not categorically preclude special unanimity instruction, or appeals based on jury non-unanimity problems. "Under appropriate facts, a continuing course of conduct may form the basis of one charge in an information. But ‘one continuing offense’ must be distinguished from ‘several distinct acts,’ each of which could be the basis for a criminal charge. ... To determine whether one continuing offense may be charged, the facts must be evaluated in a commonsense manner." (State v. Petrich (WA 1984) 683 P2d 173 [citing United States v. Berardi (7th Cir.1982) 675 F2d 894, 898]; see also People v. Mota (CA 1981) 115 CA3d 227, 233 [171 CR 212].)

    Hence, the existence of general "continuous conduct" exceptions, courts have held that failure to give a special unanimity instructions as to continuous conduct convictions may be reversible error. (See e.g., U.S. v. Russell (3rd Cir. 1998) 134 F3d 171, 176 [federal Continuing Criminal Enterprise statute]; Petrich, supra. 683 P2d 173); Commonwealth v. Connefrey (MA 1995) 650 NE2d 1268, 1270 [ongoing child sexual abuse convictions]; State v. Handyside (WA 1985) 711 P2d 379 [same].)

    In sum, there is an ongoing tension between the continuous conduct exception and the more general jury unanimity rule that "when the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed ..." (People v. Gordon (CA 1985) 165 CA3d 839, 853 [212 CR 174]; People v. Thompson (CA 1995) 36 CA4th 843, 850 [42 CR2d 798].) Arguably, if discreet criminal acts are committed, unanimity should be required even if the acts are over a continuous period of time.

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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    273.7.2.3    Jury Unanimity: Continuous Conduct Exception  Not Applicable Where Alleged Acts Are Subject To Different Defenses

PRACTICE NOTE: For the "continuous conduct" exception to apply, component acts or offenses must be subject to identical defenses, so that jurors have no reasonable basis distinguish between them. (People v. Crandell (CA 1988) 46 C3d 833, 875 [251 CR 227].) In People v. Johnson (UNPUBLISHED, 3/8/97, A072990) the court of appeal reversed for failure to give a requested unanimity instruction where the prosecutor alleged assault based upon either hitting the victim with a brick or with a cane. The court concluded that the "continuous course of conduct" exception did not apply because the defendant did not offer "'essentially the same defense to each of the acts, and there [was] [a] reasonable basis for the jury to distinguish between them.' (People v. Stankewitz (CA 1990) 51 C3d 72, 100 [270 CR 817].)" 

    See also FORECITE National™ 273.7.2.2 [Overcoming The Continuing Course Of Conduct Exception].

OPINION AVAILABLE: For a copy of the unpublished opinion in Johnson, click here. [Opinion Bank # O-232].

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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PRACTICE NOTE: To the extent the continuous course of conduct exception to the unanimity requirement allows a defendant to be convicted without agreement on a discrete set of actions, it implicates the Due Process Clause of the U.S. Constitution. (5th and 14th Amendments.) "[S]ubstantial agreement on a discrete set of actions is essential to ensure that the defendant is guilty beyond a reasonable doubt of some specific illegal conduct. [Citation]." (U.S. v. Edmonds (3rd Cir. 1996) 80 F3d 810, 819; see also Eric S. Miller, Compound/Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts (1995) 104 Yale L.J. 2277 (1995).)

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].