Return to CALJIC Part 5-8 – Contents
F 8.74 n1 Agreement As To Degree Of Murder Must Be Given Sua Sponte (PC 187).
No case has squarely decided whether the trial court must instruct sua sponte on CJ 8.74 which requires the jury to unanimously agree upon the degree of guilt. However, People v. Aikin (71) 19 CA3d 685, 703, fn 13 [97 CR 251] recognized that the failure to give a unanimity instruction as to the degree of guilt was a “deficiency” although the prejudicial effect of the error was diminished by another instruction. Hence, a fair reading of Aikin is that is establishes a sua sponte duty to give CJ 8.74. [Additional briefing on this is available to FORECITE subscribers. Ask for Brief Bank # B-551.]
F 8.74 n2 Murder: Specification Of Degree Not Necessary When Only Theory Is Felony Murder.
(See People v. Mendoza (2000) 23 C4th 896, 908-909 [98 CR2d 431] [PC 1157 does not require jury to specify degree of murder conviction when only theory of killing offered by prosecution is felony murder].)