PG VIII(D) Special Verdicts To Meet Defendant’s Burden Under Guiton.
Special findings may be particularly significant. In People v. Guiton (93) 4 C4th 1116, 1121-22 [17 CR2d 365], the court limited the traditional Green rule (People v. Green (80) 27 C3d 1, 69-70 [164 CR 1] that reversal is required where it is unknown whether the jury relied upon the improper theory . Under Guiton, the Green rule still applies to legally insufficient theories but not to factually insufficient theories. As to the latter, the defendant must establish a reasonable probability that the jury relief on the insufficient theory.
Hence, if there is a possibility that the jury may rely on a factually insufficient theory, a special verdict might be a useful tool to meet the Guiton burden. (See, e.g., People v. Washington DEPUBLISHED (88) 206 CA3d 1409, 1425 [254 CR 467] — reversal required because special findings established that the jury relied upon the erroneous theory.) Indeed, without a special verdict, it may be virtually impossible to satisfy Guiton. (See FORECITE PG X(B)(5) [discussing theGuiton burden and suggesting a due process challenge to EC 1150 to allow juror declarations to satisfy Guiton].) Hence, even though the special verdict could conclusively prove the error harmless by showing that the jury did not rely on the erroneous theory, it could also be worth the risk since the error may well be held harmless anyway.