Return to CALJIC Part 14-17 – Contents
F 17.03 n1 When Alternative Counts Include Lesser Offenses.
See FORECITE F 17.12a.
F 17.03 n2 Verdict As To Charged Lesser May Be Returned Before Verdict As To The Greater Offense.
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 for the following reasons:
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 find 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.
F 17.03 n3 Conviction For Receiving Stolen Property And/Or Burglary As To The Same Property.
(See FORECITE F 14.65 n5.)
F 17.03a
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 CJ 17.03 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.
