Filed 9/17/26 P. v. Herbold CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G065198
v. (Super. Ct. No. 24NF0454)
JASON ROBERT HERBOLD, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Elizabeth G. Macias, Judge. Affirmed in part, reversed in part.
Debbie Yen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Arlene A. Sevidal, Assistant
Attorney General, Christopher P. Beesley and Cobi S. Furdek, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant Jason Robert Herbold challenges his petty theft
conviction, contending the trial court should have given a unanimity
instruction sua sponte. The Attorney General concedes the error but contends
it is harmless. We conclude omitting the instruction was not harmless and
reverse.
FACTS
Charlie Park returned to his garage after a walk to find a man,
Herbold, going through his things. Park saw Herbold holding a sunglasses
case, sunglasses and other items, but did not see him holding any extension
cords. Park yelled at him and Herbold said he was just trying to charge his
phone. Herbold dropped several items, some of which belonged to Park,
including several pairs of Park’s sunglasses.
Park threatened to call the police and Herbold ran away,
dropping his own bags. Park noticed several items missing from his car,
including USB drives. He was also missing his prescription reading glasses.
His wallet was not taken, but $300 was missing from it.
Park also saw some extension cords on the floor near Herbold’s
bags. Park normally kept these cords in a shoe closet inside his home.
Park began cleaning up. In the process, he touched “everything.”
While cleaning up, Park picked up the extension cords and placed them on
top of some tool bags.
Police arrived later and a forensic specialist took a DNA sample
from Park’s extension cords and Herbold’s bags. The specialist also took a
buccal swab of Park, and a detective with the Anaheim Police Department
later took a buccal swab of Herbold. The DNA on the cords was found to be a
mixture consistent with two contributors. There was “very strong support”
that Herbold was a contributor to the DNA mixture on the extension cords.
2
Herbold was arrested approximately a week later, wearing the
same clothing he had been wearing on the date he entered Park’s garage.
Herbold was charged with felony first degree residential burglary (Pen.
Code,1 §§ 459–460, subd. (a); count 1), felony grand theft (§ 487, subd. (a);
count 2), and misdemeanor unlawful tampering with vehicle (Veh. Code,
§ 10852; count 3).
At trial, a forensic scientist testified that “any time you touch an
item or a person, not only are you depositing your DNA, but you might also
be picking up theirs to transfer to another item later on.” She also testified it
is best practice to use gloves when collecting samples. The forensic specialist
testified she wore a mask and gloves while collecting evidence but defense
counsel asserted in closing arguments that a photograph presented at trial
showed her handling the extension cords wearing no mask or gloves. This
photograph does not appear to be included in the record.
The People proposed a unanimity instruction for the burglary
charge but not for the theft charge. Herbold’s counsel did not request one for
theft, either.
In closing argument, the prosecution suggested three acts of
theft: (1) the theft of $300 from Park’s wallet, (2) theft of the $800
prescription eyeglasses, and (3) theft of extension cords/electricity.
The jury found Herbold guilty of burglary and misdemeanor petty
theft as a lesser included offense of felony grand theft. The jury acquitted
Herbold of vehicle tampering. The trial court sentenced Herbold to four years
1 All statutory references are to this code.
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for the burglary and imposed a concurrent 180-day sentence for the petty
theft.2
DISCUSSION
While Herbold did not request a unanimity instruction for the
petty theft charge, he contends the trial court should have given one sua
sponte. “[W]hen 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.” (People v. Norman (2007) 157
Cal.App.4th 460, 464 (Norman).) “‘This requirement of unanimity as to the
criminal act “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.”’” (Id. at pp. 464–465.) “The unanimity instruction
must be given sua sponte, even in the absence of a defense request to give the
instruction.” (People v. Hernandez (2013) 217 Cal.App.4th 559, 569.)
The Attorney General concedes Herbold’s “point is well taken; the
court should have instructed the jury on unanimity.” Specifically, “the court
should have instructed the jury that it had to unanimously agree on which
act (e.g., the taking of sunglasses, extension cords, or cash) constituted the
petty theft.”
The only question, then, is whether the error is harmless. “The
failure to give a unanimity instruction may be harmless error if we can
conclude beyond a reasonable doubt that all jurors must have unanimously
agreed on the act(s) constituting the offense.” (Norman, supra, 157
Cal.App.4th at p. 466.)
2 Herbold contends the trial court should have stayed the petty
theft sentence. (See § 654.) This issue is moot considering our reversal.
4
The Attorney General asserts the error was harmless because
there is no possibility the jury was divided as to whether Herbold took the
extension cords.3 (See People v. Napoles (2002) 104 Cal.App.4th 108, 119
(Napoles) [“erroneous failure to give a unanimity instruction is harmless if
disagreement among the jurors . . . is not reasonably possible”].)
We are not as confident as the Attorney General that “[t]he
prosecution’s case that appellant stole the extension cords was about as
strong a case on stolen extension cords imaginable.”
Instead, we believe a reasonable jury could have divided as to
Herbold’s intent. The jury was instructed that the prosecution must prove
Herbold acted with the intention to deprive the owner of the cords
permanently or remove them for an extended period of time such that Park
would be deprived of a major portion of the value or enjoyment of them.
(§ 484, subd. (a); CALCRIM No. 1800.) Herbold moved the extension cords
from the house to the garage, where he left them. He told Park he was only
trying to charge his phone. The jury could have reasonably concluded Park
touched the cords and took them into the garage but did not intend to keep
them or permanently deprive Park of their value or use.
3 Because the Attorney General addresses only the extension
cords, we take it as a concession there is reasonable doubt as to whether the
jury could have come to a unanimous decision on the other possible acts of
theft. (People v. Bouzas (1991) 53 Cal.3d 467, 480 [state’s failure to respond to
appellant’s point concedes it].)
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DISPOSITION
The conviction on count 2 petty theft is reversed. In all other
respects, the judgment is affirmed.
SCOTT, J.
WE CONCUR:
DELANEY, ACTING P. J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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