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F 17.12a
When Alternative Counts Include Lesser Offenses*
*See Subsequent History Below
*To be added after CJ 17.12:
You have been advised that the defendant is charged in alternative counts with the crimes of unlawful vehicle taking and the receipt of stolen property, and that you may find the defendant guilty of only one of these charges.
You have been further instructed that __________ is a lesser included offense of __________ and that if you find the defendant not guilty of __________ you may convict [him] [her] of the lesser offense of __________.
You may consider and discuss all three potential offenses before reaching a verdict on any of them. However, before reaching a verdict on the question of whether or not guilt has been proven beyond a reasonable doubt as to the lesser included offense, you must first unanimously agree that guilt was not proven as to both of the greater offenses.
Points and Authorities
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).]
*SUBSEQUENT HISTORY
In its first newsletter in July 1990, FORECITE proposed the above instruction based upon the instruction suggested in People v. Gutierrez (90) 219 CA3d 1, 7, fn 4 [268 CR 26]. The November 1990 revision of CJ 17.03 appears to have been prompted by the concerns identified in Gutierrez. However, the instruction suggested by the Gutierrez court more clearly informs the jury that it may consider and discuss all three potential offenses before reaching a verdict than does CJ 17.03. Therefore, FORECITE’s proposed instruction FORECITE F 17.12a should still be requested in lieu of CJ 17.03. (See generally FORECITE PG I(B).)
NOTES
In order to protect the defendant’s due process right to have the jury consider all possible verdicts, the jury must be instructed that they “should” consider all potentially applicable offenses. (See FORECITE F 8.75a.)
In People v. Scheidt (91) 231 CA3d 162, 169-71 [282 CR 228], the court held that only a statutory lesser included offense is subject to the bar against multiple convictions in same proceeding. (See also People v. Thomas (91) 231 CA3d 299, 305-06 [282 CR 258].)
