SERIES 3500 POST-TRIAL: CONCLUDING
F 3517 Deliberations And Completion Of Verdict Forms: Lesser Offenses Or Degrees—Without Stone Instruction (Non-Homicide) (PC 1159)
TABLE OF CONTENTS
F 3517 Inst 1 Verdict As To Charged Lesser May Be Returned Before Verdict As To The Greater Offense
F 3517 Inst 2 Doubt Whether Greater Or Lesser Offense [Dewberry]
F 3517 Inst 3 Jury Should Be Instructed Upon Partial Verdict
F 3517 Inst 4 Doubt Whether Greater Or Lesser Offense: Applicability When Lesser Is Not Charged [Dewberry]
F 3517 Inst 5 Explanation That If Defendant Is Guilty Of Uncharged Lesser Related Offense Jury Must Acquit
F 3517 Inst 6 Definition Of Greater Offense Should Include Elements Of Lesser Offense Which The Prosecution Must Negate
Return to Series 3500 Table of Contents.
F 3F 3517 Inst 1 Verdict As To Charged Lesser May Be Returned Before Verdict As To The Greater Offense
*When the information charges a lesser included offense, modify the last sentence of CC 3517 to provide as follows:
Once you have arrived at a verdict as to any charged offense, you should inform the bailiff and return that verdict to the court. It is not necessary that you unanimously agree as to any other charge or charges before returning any verdict you have reached.
Points and Authorities
CALCRIM 3517 implies that the jurors must complete all the verdict forms before returning any verdict. However, the jurors should understand their right to return any verdict at any time, even if it is partial.
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 (1987) 191 CA3d 832, 839 [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 resolve the greater offense before returning a verdict on the lesser offense. (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 (1988) 46 C3d 322, 330-33.) 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.)
See also “April 2008 CALCRIM Revisions–FORECITE Critique And Comments, Guide for Using Judicial Council of California Criminal Jury Instructions (“CALCRIM”): Lesser Included Offenses.”
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 8.4 [Right To Jury Determination Of Lesser Included Offense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 17.03a, F 17.10c.
F 3517 Inst 2 Doubt Whether Greater Or Lesser Offense [Dewberry]
*Add to CC 3517:
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; see also CJ 8.72.) The same should apply to lesser included offenses. (People v. Crone (1997) 54 CA4th 71,79 [failure to instruct on effect of reasonable doubt in choosing between greater and lesser offense was error]; see also People v. Dewberry (1959) 51 C2d 548, 555; People v. Aikin (1971) 19 CA3d 685, 699-703; 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.)
However, CALCRIM 3517 does not convey the Dewberry principle to the jurors because it does not address the question of how to choose between a greater and lesser offense or degree. Therefore, the Dewberry language should be added. (Compare People v. Musselwhite (1998) 17 C4th 1216, 1261-62 Dewberry error cured by CJ 2.02].)
Identification Of Parties—See FORECITE F 100.2 Note 1
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 8.4 [Right To Jury Determination Of Lesser Included Offense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
STRATEGY NOTE—”Are Satisfied” vs. “Find” —An instruction which requires that the jurors be convinced or satisfied that the defendant is guilty does not require the jury to find guilt beyond a reasonable doubt based on evidence presented by the prosecution. A fact finder can be “convinced” in his or her own mind that the defendant is guilty beyond a reasonable doubt even if the evidence has fallen short of so proving. Proof beyond a reasonable doubt is required as to every fact essential to the charged offense and every element of the offense. (See In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].)
On the other hand, when the defense strategy is focused on obtaining conviction of the lesser charge rather than acquittal, use of “satisfied” may be preferable.
CALJIC NOTE: See FORECITE F 17.10a.
F 3517 Inst 3 Jury Should Be Instructed Upon Partial Verdict
The Bench Notes from CC 3517 suggest that the judge has no obligation to give the partial verdict language set forth in paragraph 5 of CC 3517 [“[T]his is not a mandatory procedure . . . The court may give (CC 3518) in place of this instruction.”].
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. (See People v. Geiger (1984) 35 CA3d 510, 526.) Moreover, the failure to accept a partial verdict may also implicate double jeopardy principles. (Cf. [NF] Blueford v. Arkansas (5/24/2012, No. 10-1320) ____ US ____ [182 LEd2d 937; 132 SCt 2044] [no double jeopardy violation for failure to accept partial verdict because jurors could have reconsidered that verdict during continued deliberations].) In sum, the jury should be instructed upon its right to return a partial verdict in light of the defendant’s double jeopardy, due process and trial by unbiased jury rights under the federal constitution. (5th, 6th and 14th Amendments.)
See also Annotated List of CALCRIM Instructions Discussed in the Case Law, CC 3517 [Propriety Of Partial Verdict When Jury Votes Not Guilty On The Greater Offense But Hangs On The Lessor].
F 3517 Inst 4 Doubt Whether Greater Or Lesser Offense: Applicability When Lesser Is Not Charged [Dewberry]
*Add to CC 3517:
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 3517 Inst 2; F 17.10g.)
Additionally, the principles articulated in People v. Dewberry (1959) 51 C2d 548 should also be applicable to such a situation. Hence, a Dewberry instruction such as the one set forth above should be given upon request.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 8.4 [Right To Jury Determination Of Lesser Included Offense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 17.10h.
F 3517 Inst 5 Explanation That If Defendant Is Guilty Of Uncharged Lesser Related Offense Jury Must Acquit
*Add to CC 3517:
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 (1998) 19 C4th 108 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 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 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.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 17.10g.
F 3517 Inst 6 Definition Of Greater Offense Should Include Elements Of Lesser Offense Which The Prosecution Must Negate
See FORECITE F 520.6 Inst 1.
