SERIES 3500 POST-TRIAL: CONCLUDING
F 3517 NOTES
TABLE OF CONTENTS
F 3517 Note 1 Lesser Included Update
F 3517 Note 2 Lesser Related Update
F 3517 Note 3 Lesser Offense: CJ 17.10 Does Not Violate Kurtzman
F 3517 Note 4 Instruction On Lesser Offenses As To One Co-Defendant And Not The Other May Improperly Direct The Jury
F 3517 Note 5 Constitutional Challenge To Acquittal First Rule
F 3517 Note 6 Conviction Of Lesser Offense—Impact On Greater Offense
F 3517 Note 7 When Alternative Counts Include Lesser Offenses
F 3517 Note 8 Lesser Enhancement Allegation
F 3517 Note 9 Application Of Reasonable Doubt Rule To Choice Between Enhancement Allegations
F 3517 Note 10 Choice Between Firearm Use And Arming Allegations
F 3517 Note 11 The CALCRIM Instructions On Deliberation Procedure Fail To Require Consideration Of Omitted Elements Or Sub-Elements
Return to Series 3500 Table of Contents.
F 3517 Note 1 Lesser Included Update
See FORECITE LIO.
See also “April 2008 CALCRIM Revisions–FORECITE Critique And Comments, Guide for Using Judicial Council of California Criminal Jury Instructions (“CALCRIM”): Lesser Included Offenses.”
[Research Note: See FORECITE BIBLIO 8.75 and FORECITE BIBLIO 17.10]
CALJIC NOTE: See FORECITE F 17.10 n1.
F 3517 Note 2 Lesser Related Update
See FORECITE “Lesser Related Offenses.”
[Research Note: See FORECITE BIBLIO 8.75 and FORECITE BIBLIO 17.10]
CALJIC NOTE: See FORECITE F 17.10 n2.
F 3517 Note 3 Lesser Offense: CJ 17.10 Does Not Violate Kurtzman
People v. Pinholster (1992) 1 C4th 865, 952-52.
[Research Note: See FORECITE BIBLIO 8.75 and FORECITE BIBLIO 17.10]
CALJIC NOTE: See FORECITE F 17.10 n3.
F 3517 Note 4 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.
CALJIC NOTE: See FORECITE F 17.10 n7.
F 3517 Note 5 Constitutional Challenge To Acquittal First Rule
See FORECITE F 8.75 n6.
F 3517 Note 6 Conviction Of Lesser Offense—Impact On Greater Offense
See FORECITE LIO V(D).
F 3517 Note 7 When Alternative Counts Include Lesser Offenses
See FORECITE F 17.12a.
F 3517 Note 8 Lesser Enhancement Allegation
See FORECITE F 3260.2 Inst 1.
F 3517 Note 9 Application Of Reasonable Doubt Rule To Choice Between Enhancement Allegations
See FORECITE F 3260.2 Inst 2.
F 3517 Note 10 Choice Between Firearm Use And Arming Allegations
See FORECITE F 3260.2 Inst 3.
F 3517 Note 11 The CALCRIM Instructions On Deliberation Procedure Fail To Require Consideration Of Omitted Elements Or Sub-Elements
CALCRIM 3517 lists the greater and lesser offenses and then tells the jurors that: “It is up to you to decide the order in which you consider each crime and the relevant evidence ….” The instructions do not say jurors must consider lesser offenses whose definitions may actually include elements or sub-elements of the greater offenses. (See e.g., murder and attempted murder.)
Accordingly, either the CALCRIM deliberation instruction or the instruction defining the elements of the greater offense should be modified to assure that the jurors are required to consider and determine whether any sub-elements have been proved beyond a reasonable doubt. (See e.g., FORECITE F 520.6 Inst 1 [The CALCRIM Instructions Fail To Make It Clear That Absence Of Passion/Quarrel And Absence Of Imperfect Defense Are Prerequisites Which The Jurors Must Find Before Convicting The Defendant Of Murder Or Attempted Murder].)
