(Super. Ct. No. 541279). John True, III, Superior Court of Alameda County.
The opinion of the court was delivered by: Gaffey, J.
CERTIFIED FOR PUBLICATION
Walter Hoye (Appellant), an Oakland minister, would routinely go to the 200 block of Webster Street, in Oakland, California, for a few hours on Tuesday mornings, where he would stand in front of the Family Planning Specialists building holding a sign and literature for distribution. He often would take up his position by "his tree" located in front of the clinic. Appellant's sign on the days in question stated "Jesus loves you and your baby. Let us help." The literature he had to pass out would also provide contact information for alternatives to abortion. Sometimes Appellant would approach people walking to the clinic and talk to them. The clinic, in an effort to both block Hoye's signs and frustrate his attempts to communicate with their clients, organized volunteer "escorts" to place themselves and large blank posters between Hoye and clinic clients.
The Oakland City Council enacted a so-called "bubble zone" ordinance in February2009. Based on Appellant's actions on April 29 and May 3, 2009, he was charged with several violations of the ordinance. (Oakland Mun. Code § 8.52.030, subd.(B).) The Oakland ordinance makes it a criminal offense to "knowingly approach" within eight feet of any person who is seeking to enter a reproductive health care facility without the consent of such person, for the purpose of counseling, harassing, or interfering with such person.*fn1 Oakland Municipal Code, section 8.52.020, subdivisions (C) and (D), define the terms "harassing" and "interfering."*fn2
The prosecution presented testimony from four separate witnesses who described with varying degrees of specificity three to 12 different interactions between Appellant Hoye and the individuals who entered 200 Webster Street on the two days in question. All evidence came through testimony of clinic employees, escorts, and a single friend and supporter of Appellant. The defense also presented a videotape of the events of each day. Neither the victims nor Appellant testified at trial.
The jury convicted Appellant of violating the ordinance on each of the two days in question.
"Defendants in criminal cases have a constitutional right to a unanimous jury verdict." (People v. Napoles (2002) 104 Cal.App.4th 108, 114.) When a defendant is charged with a single criminal act, but the evidence reveals more than one instance of the charged crime, either the prosecution must select the particular act upon which it relies to prove the charge, or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
If the prosecution does not make a selection, the court has a sua sponte duty to give an instruction stating that the jury must unanimously agree upon the act or acts constituting the crime. (People v. Russo, supra, 25 Cal.4th at p. 1132.) CALCRIM No. 3500, the instruction on unanimity, provides in pertinent part: "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."
The purpose of the unanimity instruction is to prevent a verdict that results from some jurors believing the defendant committed one act and others believing the defendant committed a different act, without agreement on what conduct constituted the offense. (People v. Washington (1990) 220 Cal.App.3d 912, 915-916.) If a jury is permitted to amalgamate evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, the ...