Usually, jurors must agree on the act that supports each charged count when the evidence describes several separate acts that could fit that count. The prosecutor can instead identify one act for a count. Repeated abuse described without exact dates may call for a different instruction, and a charged continuous-sexual-abuse offense has its own statutory rule. The charging document, testimony, and final jury instructions must be compared count by count.
Match each count to the possible acts
Suppose one count alleges a lewd act during a two-month period, but the testimony describes two distinct incidents during that period. If reasonable jurors could accept one incident and reject the other, they should not return a guilty verdict by combining different choices. CALCRIM No. 3500 tells jurors to agree on at least one act and which act the defendant committed. Its bench notes explain that, when multiple discrete crimes could support one count, the prosecutor may elect an act or the court may need a unanimity instruction. A continuous course of conduct and closely connected acts require their own analysis; the same instruction does not automatically fit every repeated-act allegation.
Counsel can make a simple chart for each count: alleged period, type of act, location, statement describing it, and evidence that might distinguish it from another event. This matters when a defense applies to one alleged incident but not another, or when witnesses describe different events. Preserve the complaint or information, recorded interviews, preliminary-hearing testimony, and proposed and final instructions. A calendar gap or an uncertain date alone does not establish that the count fails.
What if the child describes a recurring pattern rather than dates?
In People v. Jones, the California Supreme Court held that sufficiently grounded testimony about recurring child molestation does not fail automatically because the child cannot identify exact dates. The testimony still needs an adequate description of the kinds of acts, their approximate number or frequency, and a general period. The court also distinguished cases in which jurors could reasonably disagree about particular acts from cases in which the issue is whether the described recurring conduct happened at all.
For the latter kind of generic testimony, CALCRIM No. 3501 permits conviction if all jurors agree on a particular act or all agree that every act described for the relevant period occurred, subject to the charged number of offenses. It is a tailored alternative, not permission for jurors to disagree about guilt on each count. If the prosecutor elects a particular act, a separate election instruction may be appropriate. Counsel should compare the actual testimony and theories with the instruction the jury received rather than infer the rule from a case label.
A section 288.5 charge follows a separate rule
Penal Code section 288.5 defines continuous sexual abuse involving a child under 14, a person living with or having recurring access to the child, a period of at least three months, and at least three qualifying acts. For that charged offense, subdivision (b) requires jurors to agree that the required number of acts occurred, but not on which particular acts supplied that number. Subdivision (c) also limits charging other same-victim acts in the same proceeding within the charged period unless they are charged in the alternative. Those provisions do not turn separate lewd-act counts into section 288.5 counts.
The useful question is which acts could support each count and whether the jury was told to agree in the way that count requires. For related charge information, see the Law Offices of David S. Chesley’s child-molestation defense page. To discuss the charging document and instructions, call (800) 755-5174.