P. v. Widly
John Randal Widly appeals the judgment entered following conviction by jury of possession of methamphetamine (Health & Saf. Code, 11377, subd.(a); count 1) and possession of controlled substance paraphernalia (Health & Saf. Code, 11364, count 2). The trial court suspended imposition of sentence and placed Widly on formal probation for three years under the terms and conditions of Proposition 36.
On the other hand, we agree with Widlys instructional error claim, at least with respect to jury unanimity. Because the facts that prompted the midtrial amendment also established more than one discrete act of unlawful methamphetamine possession, the trial court committed what has been called the most common kind of instructional error in criminal cases by failing to sua sponte instruct the jury with a unanimity instruction. (People v. Norman (2007) 157 Cal.App.4th 460, 467 (Norman).) Moreover, Court conclude the absence of a unanimity instruction amounts to reversible error because without it, we cannot determine whether the jury unanimously agreed on the factual basis for the verdict. Therefore, the judgment must be reversed as to count 1, and the case remanded for a new trial on that count. In all other respects, the judgment is affirmed.
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