Filed 6/18/15 P. v. Bradder Ca2/4 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION FOUR 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

ROSS ALAN BRADDER, 

 Defendant and Appellant. 

 B254835 

 (Los Angeles County 

 Super. Ct. No. BA380684) 

 APPEAL from a judgment of the Superior Court of Los Angeles County, Bob S. 

Bowers, Judge. Reversed. 

 Stanley Dale Radtke, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Jason Tran and Jonathan J. Kline, 

Deputy Attorneys General, for Plaintiff and Respondent. 
2

INTRODUCTION 

 Defendant Ross Alan Bradder was convicted by jury of one count of 

embezzlement and acquitted on six counts of forgery. The jury rejected the special 

allegations seeking sentencing enhancements for taking property worth more than 

$200,000 or, alternatively, $65,000. On appeal from his embezzlement conviction, 

defendant contends the trial court erred in failing to give two jury instructions sua sponte: 

a unanimity instruction regarding the multiple acts which allegedly constituted 

embezzlement and an instruction regarding the statute of limitations. We find the failure 

to give a unanimity instruction under the circumstances of this case was prejudicial error. 

We therefore reverse the judgment. 

FACTUAL AND PROCEDURAL HISTORY 

I. Procedural Background 

 Defendant was charged by information with one count of embezzlement (Pen. 

Code, §504 (count 1))1

 and six counts of forgery (§470, subd. (a) (counts 2 through 7)). 

The information further specially alleged as to count one that defendant took property 

with a value exceeding $200,000 (§12022.6, subd. (a)(2)) or, alternatively, $100,000 

(1203.045, subd. (a)).2

 

 After a six day trial, the jury found defendant guilty of embezzlement on count 

one. The jury found defendant not guilty on all six forgery counts and found both of the 

special allegations on count one not true. On March 7, 2014, the court sentenced 

defendant to 364 days in prison, with the execution of that sentence suspended, and 

placed defendant on three years formal probation. The court further assessed various 

fines, including $43,000 in restitution to the victim. (§1202.4, sub. (f).) Defendant 

 

1

 All further statutory references are to the Penal Code unless otherwise indicated. 

2

 The information alleged the lesser enhancement was “a theft of over $100,000, 

within the meaning of Penal Code section 1203.045(a).” Ultimately, as reflected in the 

jury instructions and verdict form, the amount of the lesser enhancement was alleged to 

be $65,000 pursuant to section 12022.6, subdivision (a)(1). 
3

timely appealed.

II. Prosecution Case

 A. Creation of Los Angeles Community Builders, Inc.

 The Church on the Way (the Church) is a large church located in Van Nuys, 

California. During at least the last decade, the Church held seven to eight services each 

week “in a variety of languages,” generated an income of about 16 million a year, and 

owned a radio station, university, and “a number of other organizations.” In 2002, the 

Church began an outreach organization called Los Angeles Community Builders, Inc. 

(LACBI). LACBI’s mission was to help the surrounding community by providing 

counseling and tutoring to students, revitalizing rundown houses and other facilities, 

providing food for community members in need, and organizing other community 

activities. The Church had engaged in some of these activities in the past, but created 

LACBI as a separate, nonprofit organization that received its support through donations. 

 Defendant “was the impetus behind” the creation of LACBI and was therefore 

installed as its founding president. James Tolle, who served as the Church’s senior pastor 

for much of the period at issue, became the founding Chairman of LACBI’s board of 

directors; other Church members made up the remainder of the board. Defendant was 

LACBI’s “sole employee” but his salary was paid by the Church. Defendant ran the day 

to day operation of LACBI, including raising funds and organizing events. Defendant 

was given “a fair degree of independence in the sense that he was to manage the daily 

details” of LACBI, but he worked under the oversight of the LACBI board and was 

required to provide financial reports. Defendant “was to report to [Tolle] as the 

Chairman and to the Vice Chairman and to the Treasurer,” Louis Eksteen.3

 

 LACBI was formally incorporated in March 2002. LACBI’s bylaws and articles 

of incorporation required that all checks issued by LACBI contain two signatures. 

LACBI operated using its own Bank of America bank account. Defendant was also 

 

3

 Eksteen was also the Church’s Chief Financial Officer. 
4

issued a LACBI credit card. In the “rare” instance that defendant would need to use his 

own funds for a LACBI expense, the Church had a form he could fill out to be 

reimbursed. But the Church “frowned on” the use of personal finances for Church or 

LACBI operations. The Church also had a “petty cash system” that required 

documentation. As such, according to Tolle, it would be “highly unusual” for defendant 

to need to write checks to cash for LACBI operations; the Church “didn’t operate that 

way” because “you can’t track any of the monies being used.” 

B. The Church Investigation 

 From its inception in 2002 until early 2008, defendant was responsible for 

LACBI’s financial accounting, which was handled independently from the Church. In 

early 2008, the Church decided to integrate LACBI’s finances into the Church’s finance 

department. As part of that process, Jeff Nelson, the Church’s finance director, took 

control over LACBI’s Bank of America bank account, the only LACBI account of which 

he was then aware. Nelson also requested that defendant provide him with bank account 

statements and any other documents related to LACBI’s expenses, so that he “could do, 

in a sense, an in-house audit” as part of the transition. Defendant was resistant to 

Nelson’s “multiple requests” for the financial documents. He eventually supplied 

incomplete records, and for certain months failed to provide the bank statement and 

copies of cancelled checks. 

 Sometime in early 2009, Nelson was trying to finalize payments to vendors for a 

LACBI event sponsored by an outside group, the Four Square Foundation. When he 

realized there were insufficient funds in LACBI’s account, he contacted the Four Square 

Foundation about the status of a “significant” grant it had promised to LACBI for the 

event. Nelson was told the check had been deposited into an account at Mission Valley 

Bank. Until that point, Nelson was not aware of any LACBI account at Mission Valley 

Bank. Nelson then informed his superiors of the existence of the account. 

 When Tolle learned of the Mission Valley Bank account, he was concerned for the 

Church’s reputation and the tax implications of any financial mismanagement of LACBI. 
5

Tolle asked Eksteen, John Farmer (the Church’s executive director), and Vip Bhola (the 

Church’s general counsel) to “find out what was going on.” 

 In March 2009, Eksteen, Farmer, and Bhola met with defendant. Defendant stated 

that he had placed the Four Square Foundation grant into the Mission Valley Bank 

account “for convenience” after “some type of delay” with the grant, and that he had 

planned to transfer the funds to the Church “later on.” Defendant also claimed that the 

board had approved the opening of the Mission Valley Bank account and that he had 

opened it “for ease of funds, to better distribute if he needed quick cash” for LACBI 

activities. Farmer testified that defendant acknowledged that he “shouldn’t have opened 

this account without letting [Farmer] know or working through the board” and promised 

to bring in all of the bank statements for that account the next day. 

 Bhola subsequently obtained directly from Mission Valley Bank copies of the 

documents defendant had used to open the account. When confronted with these 

documents, defendant admitted he had forged the signatures of Tolle and another LACBI 

board member on the documents without authorization. 

 Bhola testified that as they tried to verify what defendant had said during their 

meetings, they discovered that “some things were not true;” further, defendant’s story 

would change from meeting to meeting. As a result, they decided to create written 

statements based on the meetings, “so that maybe the solemnity of having to put 

something in writing and sign it would cause him to tell us the truth.” Bhola created a 

template for a declaration under penalty of perjury. According to Bhola, as defendant 

spoke at a meeting, Eksteen would type what he said. Defendant was then given the 

opportunity to review and amend or correct the declaration at the meeting, and he would 

then sign the document. 

 Over the course of several months in 2009, defendant met multiple times with 

Eksteen, Farmer, and Bhola and signed about 14 declarations. Bhola testified about 

additional information discovered by the Church during its investigation, discussed with 

defendant during the meetings, and memorialized in his declarations, including: (1) 
6

Defendant admitted he forged Tolle’s signature on a number of checks from LACBI’s 

Bank of America account. Tolle also identified several checks that bore his signature but 

that he did not sign. (2) Defendant deposited $7,000 into the Mission Valley account, 

noting on the deposit slip that the funds came from his wife’s mother. Defendant 

admitted this was untrue, that the funds actually came from another grant, and that he had 

never disclosed the existence of the grant to the Church. (3) Defendant deposited 

$30,000 into the Mission Valley account and represented that the money came from “Mr. 

Bullion,” a previous employer who owed him money. Defendant admitted the money 

was actually a grant from the Buckman Charitable Foundation. (4) Defendant admitted 

that he opened a second Bank of America account without knowledge or approval of the 

LACBI board. He deposited donor funds into that account. Defendant stated that he 

opened the account because the Church was “implementing increasing control” over 

LACBI’s original bank account and defendant wanted to “circumvent those controls.” 

He closed the second account when the Church began banking online, because he feared 

the Church would discover the existence of the second account. He then opened the 

Mission Valley account. (5) Defendant admitted that he signed a $500 check each month 

from a LACBI account payable to cash and that the amount was “over and above 

legitimate reimbursements” due to him. He also mislabeled multiple petty cash 

disbursements of about $150 each as ministry expenses when they were actually for 

personal use. (6) Defendant set up an automatic debit from the original LACBI Bank of 

America account for his personal gym membership, labeling the withdrawal as “dues.” 

(7) Defendant prepared checks that appeared to be tithes or donations to other 

organizations, obtained approval from the Church for the donations, and then redirected 

the funds for his own benefit, including a $1,000 check intended for San Fernando Valley 

Rescue Mission on August 10, 2008. (8) Using funds from the Mission Valley account, 

defendant, among other things: purchased a Honda minivan for his family for $24,000; 

paid off a credit loan for a personal vehicle in the amount of $6,754.89; paid for a trip for 

his family to Hawaii in the amount of approximately $4,700; and paid a personal trainer 
7

$1,119. None of these expenses was authorized by the Church.4

 (9) Defendant told 

Bhola that a sponsor had dropped out and he needed to raise $7,500 for the annual 

Thanksgiving dinner for the homeless. Bhola secured the funds for the dinner himself. 

Defendant later admitted that the sponsor had not dropped out, he did not need the money 

for the dinner, and he had put the entire amount into the Mission Valley account. 

 C. Sheriff’s Department Investigation 

 In late 2009, the Church made a formal complaint regarding defendant to the Los 

Angeles County Sheriff’s Department (LASD). In December 2009, LASD Detective 

David Lingscheidt was assigned to investigate. Detective Lingscheidt executed a search 

warrant on defendant’s residence on January 7, 2010. In a car parked in defendant’s 

driveway, the detective found a handwritten letter addressed to “Pastor Jim” (Tolle). The 

letter stated “Pastor Jim, I stole money and used it for my own purposes.” 

 Detective Lingscheidt also executed search warrants for the LACBI records at 

Bank of America and Mission Valley Bank and conducted an analysis of those records. 

He testified that defendant wrote $188,529.15 in checks to “cash” from the original 

LACBI Bank of America account between March 10, 2003 and September 26, 2007, 

$16,375 in checks to “cash” from the second Bank of America account between October 

11, 2007 and February 19, 2008, and $162,250 in checks to “cash” from the Mission 

Valley Bank account between February 22, 2008 and June 5, 2009.5 He asked defendant 

for documentation confirming defendant’s statement that “the vast majority of these cash 

disbursements” were for LACBI expenses. Defendant provided a 14-page report 

“summarizing the disbursements that he felt were related to the ministry” but did not 

provide any receipts or other documentation. Detective Lingscheidt testified that he had 

 

4

 Defendant confirmed that he made these purchases without authorization using 

funds from the Mission Valley account during his testimony at trial. 

5

 The date ranges for the second and third accounts reflect the entire period those 

accounts were open. 
8

no other way to tell which of these disbursements was for a legitimate LACBI expense 

versus for defendant’s personal use. 

 D. Interviews with Defendant 

 Detective Lingscheidt interviewed defendant on January 7, 2010 during the search 

of defendant’s residence. During the interview, defendant acknowledged LACBI’s twosignature check policy. He stated that while he initially followed the policy, he ceased 

doing so in 2003, after the death of the senior pastor (Scott Bauer) caused “a considerable 

amount” of “upheaval in the Church” and made it difficult for him to obtain the second 

signature. Defendant began writing single-signature checks to petty cash for small 

vendors who were due small amounts of money. Defendant stated he was “acting as a 

lone ranger at the ministry” as a result of the “upheaval and the change in pastors.” 

 Defendant also told Detective Lingscheidt that in 2007, he opened the second 

LACBI bank account at Bank of America. He stated he intended to use the account for 

special projects, such as fundraisers, and did not want to use the original LACBI bank 

account because he was “frustrated with the people and the Church.” The second account 

was opened without authorization from LACBI’s board. Defendant later opened an 

additional bank account at Mission Valley Bank, again without authorization. Defendant 

admitted to forging documents and Church officials’ signatures in order to create that 

account. 

 Defendant stated he initially deposited $175,000 from LACBI grants and 

donations into the Mission Valley account. He later transferred about $150,000 of that 

money to the original Bank of America account so that the Mission Valley account would 

not be discovered by the Church. According to Detective Lingscheidt, defendant stated 

he wanted to keep the Mission Valley account secret because “he was using some of the 

money for his own personal use.” Defendant admitted that his actions were “unethical, 

illegal and wrong in every way.” He estimated he had used about $25,000 in LACBI 

funds for his personal use. Defendant claimed that he sold the Honda minivan and gave 
9

the cash back to the Church as an attempt at restitution, and also “turned in his 401(k) 

account.” 

 Defendant met with Detective Lingscheidt again on June 14, 2010 to discuss the 

analysis of the bank records. Defendant stated that some of the Mission Valley 

disbursements were valid ministry expenses, but admitted that between $70,000 and 

$80,000 of the funds were for his personal use. 

III. Defense 

 Defendant testified on his own behalf. He stated that he had a “vision” in 2001 to 

develop LACBI and then met with a pastor at the Church who assisted the defendant in 

establishing LACBI. He claimed that he paid for some Church and LACBI expenses 

with his own funds and was never reimbursed. He testified that he made checks out to 

“cash” when he paid multiple vendors for an event, as he never had another authorized 

signer with him at the time. That was his “common standard practice” “virtually” from 

2003 when LACBI started doing events. He did not keep track of what payments he 

made in this fashion, stating that “managing money is not my thing.” He did not fill out 

expense reports because LACBI did not have an expense policy. He would “on a weekly 

basis” take board members, donors, and staff members out to lunch and would pay for 

that expense with his personal credit card. Defendant stated he did not receive a LACBI 

credit card until “probably closer to 2007.” 

 Defendant also claimed he used the minivan to transport “people and things” to 

LACBI events. He thought it was a “necessary expense for the need that existed,” since 

he and his family were driving “all over Southern California” for LACBI-related events. 

He opened the second Bank of America account and the Mission Valley account because 

he was unhappy that “there was a mission for the ministry that was being circumvented 

and being not fulfilled because of the control that was being placed on it by the Church.” 

When questioned about the trip for his family to Hawaii, defendant responded that “it 

would be something that would not necessarily be beyond the scope of a bonus 

compensation.” Defendant claimed he did not steal any money from LACBI. 
10

 Defendant testified the declarations he signed during the 2009 meetings with 

Church officials were not accurate, but he signed them because church officials also 

stated it was mandatory for him to sign the declarations as a condition of “restoration” to 

both the Church and his position at LACBI, and he did not pay “attention to the detail of 

words that were necessarily used” in the declarations. He was also “directed” to write the 

letter to Tolle. In addition, defendant testified that he signed a power of attorney giving 

the Church control over all of his assets. 

 On cross-examination, defendant admitting signing Tolle’s name on checks and 

signing LACBI board members’ names on the documents setting up the Mission Valley 

account, all without the knowledge or permission of the board. He testified that during 

the church’s investigation, he provided deposit slips that misidentified the source of the 

deposited funds. 

DISCUSSION

Defendant contends the trial court’s failure to give a unanimity instruction on the 

embezzlement count constituted prejudicial error. We agree. 

A. Legal Principles 

We review an assertion of instructional error de novo. (See People v. Shaw (2002) 

97 Cal.App.4th 833, 838.) Whether the trial court should have given a “particular 

instruction in any particular case entails the resolution of a mixed question of law and 

fact,” which is “predominantly legal.” (People v. Waidla (2000) 22 Cal.4th 690, 733.) 

As such, it should be examined without deference. (Ibid.) 

In a criminal case, a jury verdict must be unanimous. (People v. Collins (1976) 17 

Cal.3d 687, 693; Cal. Const., art. I, § 16.) This means that each individual juror must 

agree the defendant committed a specific offense. (People v. Russo (2001) 25 Cal.4th 

1124, 1132 (Russo).) Therefore, when the evidence suggests more than one discrete 

crime, either the prosecution must elect among the crimes, or the trial court must instruct 

the jury sua sponte that it is required to unanimously agree on the same criminal act. 

(People v. Riel (2000) 22 Cal.4th 1153, 1199.) 
11

A unanimity instruction “‘is intended to eliminate the danger that the defendant 

will be convicted even though there is no single offense which all the jurors agree the 

defendant committed.’” (Russo, supra, 25 Cal.4th at p. 1132, quoting People v. 

Sutherland (1993) 17 Cal.App.4th 602, 612.) Similarly, the instruction is “‘designed in 

part to prevent the jury from amalgamating evidence of multiple offenses, no one of 

which has been proved beyond a reasonable doubt, in order to conclude beyond a 

reasonable doubt that a defendant must have done something sufficient to convict on one 

count.’” (Russo, supra, 25 Cal.4th at p. 1132.) 

B. The Trial Court’s Failure to Give a Unanimity Instruction Sua Sponte Was 

Error 

Defendant contends that the prosecution argued he committed several discrete 

acts, any one of which the jury could have relied upon to convict him of embezzlement. 

Because the prosecutor did not elect to proceed on one specific act, defendant contends 

the trial court had a sua sponte duty to give a unanimity instruction. The Attorney 

General counters that the continuous course of conduct exception applies to the facts 

here. We conclude that this case does not fall within the exception and therefore the trial 

court should have given a unanimity instruction. 

A “narrow” exception to the rule requiring a unanimity instruction has developed 

over the years. (People v. Gunn (1987) 197 Cal.App.3d 408, 412 (Gunn); People v. 

Madden (1981) 116 Cal.App.3d 212, 218 [exception “quite limited”].) The “continuous 

course of conduct exception” is actually a “conglomerate” category comprised of several 

different types of situations. (People v. Diedrich (1982) 31 Cal.3d 263, 282.) As 

potentially applicable here, the first situation arises where the statute defining the crime 

“‘contemplates a continuous course of conduct of a series of acts over a period of time. 

[Citation.]’” (People v. Gunn, supra, 197 Cal.App.3d at p. 412, quoting People v. 

Thompson (1984) 160 Cal.App.3d 220, 224.) This exception is “applied to varying 

crimes that cover ‘repetitive or continuous conduct’ such as child abuse; misdemeanor 

child annoyance or molestation; pimping; pandering; failure to provide for a minor child; 
12

contributing to the delinquency of a minor; and dissuading a witness from testifying.” 

(People v. Jenkins (1994) 29 Cal.App.4th 287, 299-300 [citations omitted] [applying 

exception to torture]; see also People v. Thompson, supra, 160 Cal.App.3d at p. 223 

[applying exception to spousal battering because, “[l]ike child abuse, this is a case where 

each individual act may not amount to a crime, but the cumulative outcome is 

criminal.”].) 

The Attorney General suggests that embezzlement falls within this category, as its 

“statutory scheme . . . evinces a legislative intent to punish a course of conduct rather 

than discrete events.” But it cites no cases applying this exception to embezzlement, or 

to any other form of theft. Moreover, it acknowledges that the statute defining 

embezzlement6

 does not bear the standard indicia of an intent to punish a course of 

conduct—specifically, the statute does not “focus[] on a goal or effect of an offense, 

rather than the means,” and the gravamen of the offense does not lie “in its cumulative 

effect,” as is true of the offenses above. (People v. Sanchez (2001) 94 Cal.App.4th 622, 

632.) 

Instead, the cases considering the necessity of a unanimity instruction for 

embezzlement and similar offenses have looked to whether the facts of that particular 

case fall within a second subset of the continuing course of conduct exception, “when the 

acts are so closely connected that they form part of one and the same transaction, and 

thus one offense. [Citation.]” (Gunn, supra, 197 Cal.App.3d at p. 412.) In applying this 

exception, courts often assess whether defendant engaged in a course of conduct “with a 

single fraudulent intent.” (People v. Daniel (1983) 145 Cal.App.3d 168, 175 (Daniel) [no 

instruction required where defendant “engaged in a continuous course of conduct of theft 

from a single victim over a period of five months with a single fraudulent intent or 

objective”]; People v. Howes (1950) 99 Cal.App.2d 808, 821 [no instruction required 

where defendant convicted of grand theft as his “various acts . . . were all motivated, 

 

6

 Embezzlement is defined as the “fraudulent appropriation of property by a person 

to whom it has been [en]trusted.” (§ 503.) 
13

generally, ‘by one design, one purpose, [and] one impulse’ [citation]”].) It is similarly 

significant whether defendant has offered “essentially the same defense to each of the 

acts, and there is no reasonable basis for the jury to distinguish between them. 

[Citation.]” (People v. Thompson (1995) 36 Cal.App.4th 843, 851 (Thompson).) In 

Thompson, for example, a building contractor was convicted of diversion of construction 

funds through various means, including overbilling the client and applying the excess to 

other accounts; accepting money for, then failing to purchase, a requested dumbwaiter; 

and taking money for personal use. (Ibid.) In finding that an unanimity instruction was 

required, the court of appeal noted that the defendant had raised several different defenses 

for his conduct, including that “he did not know the amounts paid to suppliers were 

misapplied; he used the dumbwaiter funds for another legitimate use; and he was entitled 

to his personal draws” from the client’s funds. (Id. at p. 852.) As such, the “different 

defenses raised the problem the unanimity instruction was designed to prevent,” as some 

jurors could have believed one defense but rejected another, while other jurors could have 

reached the opposite conclusion. (Ibid.) “Absent a unanimity instruction, the jurors 

could have unanimously convicted defendant of diversion without agreeing on what he 

did.” (Ibid.) 

Similarly, here, the prosecution presented evidence of several different acts, any 

one of which could have supported the embezzlement charge against defendant if 

believed by the jury, including: (1) defendant’s purchase of a Honda minivan for his 

family with LACBI funds; (2) his payment of “bonuses” to himself out of LACBI funds, 

such as a family vacation to Hawaii, paying off a car loan, gym membership, et cetera; 

(3) his purported admission to Detective Lingscheidt that he took a certain amount of 

LACBI money for his own personal use; and (4) writing over $200,000 worth of checks 

to “cash” out of the three LACBI accounts, with little to no supporting documentation. 

The prosecution alleged that defendant’s conduct occurred “between April 1, 2003 and 

June 1, 2009” and argued each of these acts to the jury in support of the embezzlement 

charge. At trial, defendant denied committing any theft and offered several defenses: (1) 
14

he claimed the minivan was a “necessary” expense because his work with LACBI 

involved extensive travel; (2) he classified the trip to Hawaii as “bonus compensation”; 

(3) he claimed that some of the admissions made in his declarations were false and were 

made at the direction of the Church so that he would be “restored” to his position; and (4) 

he stated that he wrote many checks to cash as part of his “standard practice” and then 

used those funds for legitimate LACBI expenses, such as paying event vendors. Thus, 

the jurors could have found defendant guilty without agreeing on which acts he 

committed and which defenses they believed. 

The Attorney General suggests that all of defendant’s “explanations were 

essentially based on the same defense that his use of the money was authorized.” While 

the defenses raised here were certainly similar, they were not identical, and they provided 

the jury with a “rational basis” to distinguish between them. (Thompson, supra, 36 

Cal.App.4th at p. 853.) For example, some jurors might have believed defendant’s 

testimony regarding his legitimate use of checks written to “cash,” but rejected his claim 

that he believed he was owed a vacation as a “bonus,” while others might have reached 

the opposite conclusion. 

The jury’s rejection of both sentencing enhancements further supports our 

conclusion. This was not a case “where the jury’s verdict implies that it did not believe 

the only defense offered.” (People v. Diedrich, supra, 31 Cal.3d at p. 283.) Rather, the 

jury found that defendant committed embezzlement only as to the base amount of a 

taking over $950, but rejected the allegations that defendant embezzled more than 

$65,000, or alternatively, more than $200,000. That result suggests that the jury did not 

find beyond a reasonable doubt that defendant committed all of the acts of embezzlement 

alleged by the prosecution, nor did they accept or reject all of defendant’s defenses.7

 

 

7

 By contrast, the Attorney General cites several cases where the jury’s finding 

regarding the dollar amount of the theft actually supports application of the continuing 

course of conduct exception in those cases. For example, in Daniel, the jury found that 

defendant stole property in excess of $25,000. (Daniel, supra, 145 Cal.App.3d at p. 175.) 

Because each of the individual acts alleged was under $25,000, the “jury must have 
15

Because they may not have unanimously agreed which act or acts defendant committed, 

the unanimity instruction should have been given. 

C. The Error Was Prejudicial 

There is a split of opinion in the appellate courts as to the proper standard to apply 

when reviewing a claim of prejudicial error in a unanimity instruction case. (See People 

v. Hernandez (2013) 217 Cal.App.4th 559, 576 (Hernandez) [discussing split].) The 

majority of the courts that have addressed the issue have applied the harmless error 

standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (See, e.g., 

Hernandez, supra, 217 Cal.App.4th at p. 576; People v. Wolfe (2003) 114 Cal.App.4th 

177, 187-188 (Wolfe); People v. Smith (2005) 132 Cal.App.4th 1537, 1545; People v. 

Deletto (1983) 147 Cal.App.3d 458, 472.) As the court in Wolfe explained, “[w]hen the 

trial court erroneously fails to give a unanimity instruction, it allows a conviction even if 

all 12 jurors (as required by state law) are not convinced that the defendant is guilty of 

any one criminal event (as defined by state law). This lowers the prosecution’s burden of 

proof and therefore violates federal constitutional law.” (Wolfe, supra, 114 Cal.App.4th 

at pp. 187-188.) Where the error violates federal constitutional rights, the Chapman

standard applies. (Id. at p. 188; but see People v. Vargas (2001) 91 Cal.App.4th 506, 562 

[applying standard under People v. Watson (1956) 46 Cal.2d 818, 836, because “the 

question of whether defendant was entitled to a unanimity instruction is a state, not a 

federal, issue”].) 

 

concluded” that defendant “did indeed engage in a continuous course of conduct.” (Ibid.) 

Courts have reached similar results where several acts of petty theft make up a single 

charge of grand theft, and the defendant’s conviction for grand theft therefore reflects the 

jury’s acceptance of the entire course of conduct exception. (See, e.g., People v. Howes, 

supra, 99 Cal.App.2d at p. 820.) Indeed, in Daniel, the court of appeal found that the 

unanimity instruction should have been given on a second count of grand theft, where the 

jury found the enhancement allegation to be not true and therefore must have agreed that 

only one of two alleged takings had been proven. (Daniel, supra, 145 Cal.App.3d at p. 

175.) 
16

We agree that the Chapman standard is appropriate here. Under Chapman, the 

failure to give a unanimity instruction is harmless “[w]here the record provides no 

rational basis, by way of argument or evidence, for the jury to distinguish between the 

various acts, and the jury must have believed beyond a reasonable doubt that [the] 

defendant committed all acts if he committed any . . .” (Thompson, supra, 36 

Cal.App.4th at p. 853; see also People v. Jones (1990) 51 Cal.3d 294, 307 (harmless error 

where “the record indicate[s] the jury resolved the basic credibility dispute against the 

defendant and therefore would have convicted [him] of any of the various offenses shown 

by the evidence”.) 

We cannot say this is such a case. As discussed above, the different defenses 

raised here gave the jury a rational basis to distinguish among the various alleged acts of 

embezzlement. Moreover, the jury’s rejection of the sentencing enhancements and 

acquittal of defendant on the forgery counts preclude a conclusion that the jurors resolved 

the credibility contest against defendant and accepted the prosecution’s case in its 

entirety. Thus, because we cannot find beyond a reasonable doubt that the jury would 

have reached the same result if it had been given a unanimity instruction, the failure to so 

instruct was prejudicial.8

 Because we reverse due to this instructional error, we need not address 

defendant’s argument regarding the statute of limitations.

 

8

 For the same reason, the error would be prejudicial under the Watson standard of 

review, as the jury’s rejection of some of the prosecution’s case means “it is reasonably 

probable that a result more favorable” to defendant would have been reached if the 

unanimity instruction had been given. 
17

DISPOSITION 

The judgment is reversed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

COLLINS, J. 

We concur: 

WILLHITE, Acting P. J. 

MANELLA, J.