People v. Laport

Opinion

GILBERT, J.

—Defendant Jeanette Dee Laport was found guilty by a jury of grand theft, Penal Code section 487.1, subdivision (1). The single count in the information alleged that Laport committed the crime of grand theft between April 1983 and June 1984.

The evidence showed that during her tenure as a business manager for an art gallery, Laport embezzled approximately $18,000 by writing checks to herself. She also stole some paintings worth over $5,000.

Laport’s defense was that she believed she was authorized to take the money because of her intimate relationship with the owner of the art gallery. She threw the cancelled checks away so that the owner’s wife would not learn about their relationship. She took the paintings home to show a client.

Laport’s sole contention on appeal is that the trial court erred by failing to instruct the jury sua sponte with CALJIC No. 17.01 which requires the jury be unanimous in determining what acts constitute the offense of grand theft. We agree and reverse the conviction.

[283]

Discussion

CALJIC No. 17.01 provides: “The defendant is charged with the offense of_. He may be found guilty if the proof shows beyond a reasonable doubt that he committed one or more of such acts, but in order to find the defendant guilty, all the jurors must agree that he committed the same act or acts. It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.”

Thus, when a defendant is charged in a single count with several offenses, and the evidence shows that the defendant committed more than one of those offenses, the jurors must be instructed with CALJIC No. 17.01.

(People

v.

Diedrich

(1982) 31 Cal.3d 263, 280-282 [182 Cal.Rptr. 354, 643 P.2d 971];

People

v.