Return to CALJIC Part 14-17 – Contents
F 17.10 n1 Lesser Included Update.
See FORECITE LIO.
[Research Note: See FORECITE BIBLIO 8.75 and FORECITE BIBLIO 17.10]
F 17.10 n2 Lesser Related Update.
See FORECITE “Lesser Related Offenses”.
[Research Note: See FORECITE BIBLIO 8.75 and FORECITE BIBLIO 17.10]
F 17.10 n3 Lesser Offense: CJ 17.10 Does Not Violate Kurtzman.
People v. Pinholster (92) 1 C4th 865, 952-52 [4 CR2d 765].
[Research Note: See FORECITE BIBLIO 8.75 and FORECITE BIBLIO 17.10]
F 17.10 n4 When Alternative Counts Include Lesser Offenses.
See FORECITE F 17.12a.
[Research Note: See FORECITE BIBLIO 8.75 and FORECITE BIBLIO 17.10]
F 17.10 n5 Acquittal First Instruction Implicates Federal Constitutional Rights.
[See FORECITE F 8.75 n6.]
F 17.10 n6 Requirement That Jury Consider Lesser Offenses: Issue Alert.
Despite the modification of CJ 8.75 in response to People v. Kurtzman (88) 46 C3d 322, 329-31 [250 CR 244], there continues to be a propensity on the part of some judges to erroneously suggest to the jury that the lesser offenses may not be considered until the greater offenses are resolved. (FORECITE subscriber Jim Fahey reports that this has occurred in three different cases over the past 1 1/2 years in cases he is handling on appeal.) Accordingly, caution should be exercised at trial to assure that the jury is not misled on this point and appellate records should be closely reviewed to assure that any elaboration of these instructions is accurate.
F 17.10 n7 Instruction On Lesser Offenses As To One Co-Defendant And Not The Other May Improperly Direct The Jury.
In multiple defendant cases where the availability of lesser offenses may depend on the particular defendant’s role, instruction upon lesser included offenses as to one defendant and not the other may impermissibly imply to the jury that the judge has made a determination as to the defendant’s role in the case. [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-637.]
F 17.10 n8 Constitutional Challenge To Acquittal First Rule.
[See FORECITE F 8.75 n6.]
F 17.10 n9 Conviction Of Lesser Offense — Impact On Greater Offense.
[See FORECITE LIO V(D).]
F 17.10a
Doubt Whether Greater or Lesser Offense
*Add to CJ 17.10:
If you are satisfied beyond a reasonable doubt that the defendant committed a criminal offense, but you have a reasonable doubt whether the offense committed was __________ [insert greater offense] or __________ [insert lesser offense], you must give the defendant the benefit of the doubt and find [him] [her] guilty of __________ [insert lesser offense].
Points & Authorities
In any case involving an offense divided into degrees the jury must be advised to convict only of the lesser degree if it has a reasonable doubt as to which degree applies. (PC 1097.) The same should apply to lesser included offenses. (People v. Crone (97) 54 CA4th 71,79 [62 CR2d 607] [failure to instruct on effect of reasonable doubt in choosing between greater and lesser offense was error]; see also People v. Dewberry (59) 51 C2d 548, 555 [334 P2d 852]; People v. Aikin (71) 19 CA3d 685, 699-703 [97 CR 251]; see also Annotation, Duty to charge as to reasonable doubt as between degrees of crime or included offenses, 20 ALR 1258 and Later Case Service.) Neither CJ 17.10 nor CJ 17.12 convey this principle. (Compare CJ 8.71 and CJ 8.72 re degrees of murder.) The gist of Dewberry is that the jury, having determined that the defendant is guilty of the crime, must resolve any reasonable doubt as to the nature of that crime in favor of the lesser offense. As recognized in People v. Reeves (81) 123 CA3d 65, 69 [176 CR 182] CJ 17.10 does not express this Dewberry principle. (People v. Gonzales (83) 141 CA3d 786, 794 [190 CR 554], which disagreed with Reeves, is unpersuasive. In Gonzales the issue was whether the lesser included offenses should be considered “serially” or “together.” The Gonzales court’s resolution of that issue did not address or resolve the question of whether a Dewberry instruction patterned after CJ 8.72 should be given. [An unpublished opinion reversing on this issue is available to FORECITE subscribers, ask for Opinion Bank # O-226.]
Furthermore, even though CJ 17.10 was rewritten, effective January 1, 1997 (6th Ed.), it is questionable whether the 1997 instruction conveys the principle set forth in Dewberry. (Crone, 54 CA4th at 76.)
In People v. Musselwhite (98) 17 C4th 1216, 1261-62 [74 CR2d 212] the court concluded that the language of CJ 2.02 [reasonable interpretation of evidence pointing to absence of specific intent or mental state must be adopted] fulfilled the same function as the instruction proffered by the defendant in Dewberry (51 C2d at 554) and erroneously refused by the trial court in that case.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
[See Brief Bank # B-531 for additional briefing on this issue.]
F 17.10b
Jury Should Be Instructed Upon Partial Verdict
*Add at end of CJ 17.10:
If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged and unanimously so find and if you are unable to agree upon a verdict as to any lesser crime, you shall sign and return the not guilty verdict as to the charged offense.
Points and Authorities
Stone v. Superior Court (82) 31 C3d 503, 519 [183 CR 647] established the trial court’s obligation to accept a verdict of acquittal on a charged offense despite deadlock on a lesser included offense. However, CJ 17.10 says nothing about what the jury should do in the event it agrees that the defendant is not guilty of the charged crime, but disagrees on the lesser included offense. It does not tell the jury that if it finds the defendant not guilty of the charged crime it should “sign and date the not guilty verdict form as to the charged crime and report [the] disagreement as to the lesser crime to the court.” (See CJ 8.75; CJ 17.12, ¶ 4.)
It is true that the California Supreme Court has held that instruction on the partial verdict rule is not necessary at the outset of the deliberations. (People v. Jackson (89) 49 C3d 1170, 1197 [264 CR 852]; People v. Kurtzman (88) 46 C3d 322, 332, fn 9 [250 CR 244].) However, the failure to instruct upon partial verdicts at the outset provides the jury with an impermissible “all or nothing” choice in violation of due process principles. (See People v. Geiger (84) 35 C3d 510, 526 [199 CR 45].) Hence, the jury should be instructed upon its right to return a partial verdict (either by the above modification of CJ 17.10 or by CJ 17.12) in light of the federal constitutional rights to due process and trial by unbiased jury. (6th and 14th Amendments.)
NOTE: People v. Marshall (96) 13 C4th 799, 826 [55 CR2d 347] held that absent some indication of deadlock only on an uncharged lesser-included offense, the suggested procedures in Stone do not come into play. If the jury, in announcing apparent deadlock, gives such an indication, or if counsel so requests, the trial court, under Stone, should inquire further and determine whether any offenses can be eliminated. In reaching this result, the court disapproved People v. Chaney (88) 202 CA3d 1109 [249 CR 251] which had held that evidence of an actual implied acquittal is unnecessary and that Stone error is committed if the court fails to afford the deadlocked jury with an opportunity to render a partial verdict or acquittal.
NOTES
[See Brief Bank # B-549 for additional briefing on this issue.]
F 17.10c
Verdict As To Charged Lesser May Be
Returned Before Verdict As ToThe Greater Offense
*When the information charges a lesser included offense, modify the last sentence of CJ 17.10 to provide as follows:
Once you have arrived at a verdict as to any lesser or greater charged offense, you should inform the bailiff and return that verdict to the court. It is not necessary that you unanimously reject the greater charged offense before returning a verdict of guilt as to the lesser charged offense.
Points and Authorities
CJ 17.03 and CJ 17.10 inform the jury that the court cannot accept a guilty verdict on a lesser crime unless the jury has unanimously found the defendant not guilty of the greater crime. This language is erroneous in a case in which the lesser crime is charged.
First, both statutory and case law require trial courts to accept verdicts on whatever charged offense the jury has agreed upon, regardless of whether the jury is able to agree upon a verdict on any other charged or uncharged offense. (PC 1160; People v. Blair (87) 191 CA3d 832, 839 [236 CR 675] [jury may return verdict finding defendants guilty of receiving stolen property counts despite deadlock on alternative burglary counts].)
Second, a jury has no obligation to determine charged offenses in descending order of greatness. (Blair 191 CA3d at 839.) There is a judicially promulgated preclusion of verdicts on uncharged lesser included offenses in the absence of a verdict on the charged offense. (People v. Kurtzman (88) 46 C3d 322, 330-33 [250 CR 244].) But, where the prosecutor brings alternative charges, the jury is by law permitted to return a guilty verdict on the lesser charge even if some of the jurors would not agree to acquit the defendant of the greater charge. (Blair 191 CA3d at 839.)
Third, case law obliges juries to decide whether defendants are guilty of each alternative charged offense before deciding any uncharged alternative offense. Only if a jury finds the defendant not guilty of all charges made in the alternative, can it find the defendant guilty of an uncharged offense. (People v. Gutierrez (90) 219 CA3d 1, 9 [268 CR 26]; People v. Carapeli (88) 201 CA3d 589, 595, [247 CR 478].) Hence, the instruction should inform the jury that it is to determine the charged offenses first, and that the court will not accept a verdict on an uncharged offense unless the jurors first unanimously agree and return a verdict declaring that the defendant is not guilty of the charged alternatives.
The failure to adequately instruct on a lesser offense may implicate the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) to trial by jury and due process and in a capital case may also implicate the 8th Amendment. [See FORECITE PG VII(C).]
F 17.10d
Lesser Enhancement Allegation
*Add to CJ 17.10:
If you are not satisfied beyond a reasonable doubt of the truth of an allegation charged in connection with a count, you may nevertheless find a lesser allegation true, if you are convinced beyond a reasonable doubt of the truth of that lesser allegation.
[The allegation of __________ is lesser to the allegation of __________, charged in connection with Count _____.]
[The allegation of __________ is lesser to the allegation of __________, charged in connection with Count _____.]
Thus you are to determine first whether the defendant is guilty of the offense[s] charged in Count _____ [or of any lesser offense on which you have been instructed]. If you find the defendant guilty of the offense charged in Count _____ [or of a lesser offense], you are then to proceed to determine the truth of the additional allegation[s] charged in connection with that count. You are to determine the truth of the charged allegation and of any lesser allegation. In doing so, you have the discretion to choose the order in which you evaluation each allegation and consider the evidence pertaining to it. You may find it productive to consider and reach a tentative conclusion on all charged allegations and lesser allegations before reaching any final verdict[s]. [However, the court cannot accept a true verdict on a lesser allegation unless you have unanimously found the charged allegation not true.]
Points & Authorities
People v. Turner (83) 145 CA3d 658, 683-84 [193 CR 614].
In People v. Majors (98) 18 C4th 385, 410 [75 CR2d 684] the court acknowledged the Turner rule that permits instruction on “lesser included enhancements,” but held that such an instruction must be requested. The court reached this conclusion on the basis that the sua sponte obligation to instruct on lesser included offenses applies in situations where the jury is forced into an all-or-nothing choice between guilt and innocence. Such a rationale does not apply to enhancements.
F 17.10e
Application Of Reasonable Doubt Rule To
Choice Between Enhancement Allegations
*Add to CJ 17.10:
You are required to resolve in favor of the lesser allegation any reasonable doubt which you have in the choice between a charged allegation and a lesser allegation. Thus if you are convinced beyond a reasonable doubt that either a charged allegation or a lesser allegation is true, but have a reasonable doubt as to which of those allegations is application, you must give the defendant the benefit of that doubt and find the lesser allegation true and the charged allegation not true.
Points & Authorities
PC 1097; People v. Dewberry (59) 51 C2d 548, 555 [334 P2d 852]; see also FORECITE F 17.10a.
A sentencing enhancement which increases the range of punishment to which the defendant is exposed is subject to the due process (5th and 14th Amendments) and fair trial by jury (6th and 14th Amendments) provisions of the federal constitution. (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348, 2362]; Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215]; Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531]; see also FORECITE PG VII(C)(32).)
F 17.10f
Choice Between Firearm Use And Arming Allegations
*Add to CJ 17.10:
[If you are convinced beyond a reasonable doubt that the defendant was armed with a firearm in the commission of the offense[s] charged in Count[s] _____ but you have a reasonable doubt whether the defendant personally used a firearm within the meaning of these instructions] [If you are convinced beyond a reasonable doubt that one of the principals in the commission of the offense[s] charged in Count _____ was armed with or used a firearm but you have a reasonable doubt whether the defendant [himself] [herself] personally used a firearm], you must resolve that doubt in favor of a verdict on the lesser allegation of arming with a firearm, under PC 12022(a), and find the allegation of personal use of a firearm, under PC 12022.5, not true.
Points and Authorities
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
This instruction applies the general Dewberry principle stated in FORECITE F 17.10a to the most common situation requiring a choice between greater and lesser enhancements –submission of an arming allegation (PC 12022(a)(1)) as a lesser to a charged allegation of personal use of a firearm (PC 12022.5(a)). (See People v. Turner (83) 145 CA3d 658, 683-84 [193 CR 614].) Such issues are likely to arise in two contexts: (1) where the defendant is the only perpetrator but there is a question whether his or her conduct (e.g., a passive display of a weapon) constitutes “use” or merely “arming,” and/or (2) in multiple perpetrator cases where there is a question as to which person used a gun. The first bracketed clause is designed for the former, more simple situation, where the question is principally one of characterizing a single defendant’s equivocal conduct. The second bracketed clause frames the question for multiple perpetrator cases.
F 17.10g
Explanation That If Defendant Is Guilty
Of Uncharged Lesser Related Offense Jury Must Acquit
*Add to CJ 17.10:
Evidence has been presented which could support a finding that defendant:
1. ________________ [insert elements of uncharged related offense]
2. ________________ [insert elements of uncharged related offense]
3. ________________ [insert elements of uncharged related offense]
If these elements were proven defendant could be convicted of the crime of _________.
However, the defendant has not been charged with the crime of _____, and the court does not have the power to submit such an uncharged crime to you.
As a result, the question of whether or not the defendant is guilty of a lesser offense in not before you. You may only convict the defendant as charged of the crime of ________[greater offense] if the prosecution has proven all elements of that crime beyond a reasonable doubt. Otherwise, you must acquit the defendant even though you believe [him] [her] guilty of another crime such as ________[lesser related crime]. If you have a reasonable doubt whether defendant is guilty of _______[greater crime] or ________[lesser related crime] you must acquit.
Points and Authorities
People v. Birks (98) 19 C4th 108 [77 CR2d 848], gave the prosecution the unilateral power to dictate whether or not the jury will be given an all or nothing choice between conviction of the charged offense or acquittal. (See also People v. Schmeck (2005) 37 C4th 240, 292 [trial court has no duty to instruct on an uncharged lesser related offense when requested to do so by the defendant]; FORECITE LRO II.)
In cases where the defense contends that the defendant is guilty of the lesser offense but not the greater, the prosecution’s unilateral power to preclude instruction on the lesser gives the prosecution an unfair advantage. This is so because the jury, if it accepts the defense theory, will be faced with the Hobson’s choice of either convicting the defendant of a crime the prosecution failed to prove or totally exonerating a defendant who has admitted committing a crime. Hence, it may be argued that the jury should be instructed on any lesser related that is the focus of the defendant’s theory of the case to allow the defendant a fair opportunity to present a defense as required by the federal constitution. (See FORECITE LRO II(B).) However, if no instruction on the lesser is given, then the defendant should have the right to an instruction which explains the situation to the jury.
For example, Gangl v. State (MS 1989) 539 So2d 132, held that despite Mississippi’s adherence to the rule barring lesser-related offense instructions, a trial court erred prejudicially in refusing an instruction on accessory after the fact in a case where the prosecution’s evidence was intended to show accessory before the fact (i.e., aiding and abetting), on the ground that “the defendant may request an instruction regarding any offense carrying a lesser punishment if the lesser offense arises out of a nucleus of operative fact common with the factual scenario giving rise to the charge laid in the indictment.”
Gangl has been the subject of some criticism. However, even those who criticize it adhere to some portion of it. Chief Justice Hawkins’ concurrence in Porter v. State (MS 1993) 616 So2d 899, joined by three other Justices, stated that while he disagrees with Gangl, the defendant “clearly is entitled to have the jury instructed … that even though the accused under the facts of the case might be guilty of crime Z, the jury under its oath must return a verdict of not guilty unless it believes beyond a reasonable doubt that the accused was guilty of all the essential ingredients of crime X for which he stands charged.” (616 So.2d at p. 910.)
In sum, instructing on the elements of a lesser-related offense, and instructing the jury that it must acquit if it finds only the lesser-related offense and not the greater, could be very useful in preventing the fight against “prosecution jury compromise” (a jury deciding to convict of the charged offense because it has no lesser alternative, and it wants to convict of something) by emphasizing that such compromise would be improper.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, §15 and §16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
F 17.10h
Doubt Whether Greater Or Lesser Offense: Applicability When Lesser Is Not Charged
*Add to CJ 17.10:
You may only convict the defendant as charged of the crime of ________[greater offense] if the prosecution has proven all elements of that crime beyond a reasonable doubt. Otherwise, you must acquit the defendant even though you believe [him] [her] guilty of another crime such as ________[lesser related crime]. If you have a reasonable doubt whether defendant is guilty of _______[greater crime] or ________[lesser related crime] you must acquit.
Points and Authorities
Due to the unilateral power now vested in the prosecution to decide whether the jury will have a lesser related offense option, the defense should have the right to an instruction informing the jury that the lesser would have been available but for the prosecution’s decision not to charge it. (See FORECITE F 17.10g.)
Additionally, the principles articulated in People v. Dewberry (59) 51 C2d 548 [334 P2d 852] should also be applicable to such a situation. Hence, a Dewberry instruction such as the one set forth above should be given upon request.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
F 17.10i
Jury Deadlock: Jurors Not To Surrender Honest Belief
For Purpose Of Returning Verdict
(See FORECITE F 17.55a.)
