PG VIII(A) Special Verdicts: General Rule.
[See also FORECITE BIBLIO “Special Verdicts” (BIBLIO SV)]
“. . . [I]n an appropriate case the trial court may protect the record by requiring the jury to explain, in special findings, which of several alternate theories was accepted in support of a general verdict [Citations]. . . .” (People v. Carter (2003) 30 C4th 1166, 1200-1201; see also People v. Arias (96) 13 C4th 92, 158; People v. Webster (91) 54 C3d 411, 446-447.)
A special verdict requires the jury to make conclusions of fact from which the trial court determines the legal effect. (PC 1150, PC 1152.) The factual conclusions made by the jury must be formed so that nothing remains for the court but to draw conclusions of law from them. (PC 1152; People v. Perry (72) 7 C3d 756, 759 [103 CR 161].)
Special findings are factual findings made by the jury in addition to its general verdict. Hence, they are not authorized by statute. (In civil cases special findings are authorized by CCP 625.) However, the Supreme Court has intimated that special findings may accompany a general criminal verdict, even if not authorized by statute, “so long as they do not interfere with the jury’s deliberative process.” (People v. Webster (91) 54 C3d 411, 447 [285 CR 31]; see also, People v. Davis (95) 10 C4th 463, 511-12 [41 CR2d 826]; People v. Farmer (89) 47 C3d 888, 920 [254 CR 508]; People v. Mickle (91) 54 C3d 140, 178 fn 21 [284 CR 511] [verdict forms should not allow jurors leeway in the wording of special findings]; see also People v. Jackson (96) 13 C4th 1164, 1223 [56 CR2d 49] [“…use of special findings was a proper safeguard of defendant’s right of due process, insuring that the jury deliberating on a conspiracy charge agree unanimously on the overt act or acts that are the basis of his culpability”].)
In People v. McIntyre (90) 222 CA3d 229, 233 [271 CR 467], the Court of Appeal held that the trial court “may not require a jury to return a special verdict or finding of fact. The decision to bring in a special verdict or finding of fact is solely within the jury’s discretion.”
In People v. Ringelberg DEPUBLISHED (90) 224 CA3d 1300 [274 CR 532], the court concluded that special verdicts are only permissible if, one, they are in response to an allegation properly charged or, two, they are authorized by statute. (Id. at 1306.) Accordingly, a special verdict may not be obtained regarding a defendant’s use of a deadly or dangerous weapon when the purpose of the special finding is simply to prospectively qualify the defendant for the habitual offender provisions of PC 667 and PC 1192.7 should the defendant be prosecuted again in the future.
In People v. Boyajian (91) 228 CA3d 771, 774-75 [279 CR 359], the court held that a factual finding that the defendant personally used a deadly weapon charged for purposes of prospectively qualifying the offense as a “serious felony” under PC 667(c) may stand. However, the legal conclusion that the case will qualify as a serious felony in the future was ordered to be stricken. (See also FORECITE F 17.24.1b.)
A special verdict form which requires the jury to identify the theory of 1st degree murder is not an improper special verdict form because it does not present only findings of fact. It is not error to submit such a form to the jury. (People v. Neely (93) 6 C4th 877, 897-98 [26 CR2d 189].)
People v. Arias (96) 13 C4th 92, 157 [51 CR2d 770] held that the trial court may properly refuse a request to poll the jury regarding any special finding of fact or element of the verdict. The court suggested that if the defendant had sought to protect the record he could have requested a special finding in advance of the general verdict. (Arias, 13 C4th at 58.)
PRACTICE NOTE: This is significant when considering strategies for dealing with the new rule that the jury is presumed to not rely on a factually unsupported theory. (People v. Guiton (93) 4 C4th 1116, 1121-28 [17 CR2d 365].) (See PG X(B)(5).)
Rule 230 provides the procedure for requesting special findings as follows:
Whenever a party desires special findings by a jury, he shall, before argument, unless otherwise ordered, present to the judge in writing the issues or questions of fact upon which such findings are requested, in proper form for submission to the jury and serve copies upon all other parties.
See generally Annotation, Submission of special interrogatories in connection with general verdict under rule 49(B), and state counterparts, 6 ALR3d 438 and Later Case Service.