SERIES 3200 ENHANCEMENTS AND SENTENCING FACTORS
F 3260 Duty Of Jury: Verdict Form For Enhancement, Sentencing Factor, Or Prior Conviction
TABLE OF CONTENTS
F 3260.1 Titles And Identification Of Parties
F 3260.1 Inst 1 Duty Of Jury: Verdict Form For Enhancement, Sentencing Factor, Or Prior Conviction—Title
F 3260.1 Inst 2 Identification Of Prosecution And Defendant
F 3260.2 Duty Of Jury: Verdict Form For Enhancement, Sentencing Factor, Or Prior Conviction—Tailoring To Facts: Persons, Places, Things And Theories
F 3260.2 Inst 1 Lesser Enhancement Allegation
F 3260.2 Inst 2 Application Of Reasonable Doubt Rule To Choice Between Enhancement Allegations
F 3260.2 Inst 3 Choice Between Firearm Use And Arming Allegations
F 3260.3 Duty Of Jury: Verdict Form For Enhancement, Sentencing Factor, Or Prior Conviction—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 3260.4 Duty Of Jury: Verdict Form For Enhancement, Sentencing Factor, Or Prior Conviction—Burden Of Proof Issues
F 3260.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 3260.5 Duty Of Jury: Verdict Form For Enhancement, Sentencing Factor, Or Prior Conviction—Elements And Definitions [Reserved]
Return to Series 3200 Table of Contents.
F 3260.1 Titles And Identification Of Parties
F 3260.1 Inst 1 Duty Of Jury: Verdict Form For Enhancement, Sentencing Factor, Or Prior Conviction—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 3260.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 3260.2Duty Of Jury: Verdict Form For Enhancement, Sentencing Factor, Or Prior Conviction—Tailoring To Facts: Persons, Places, Things And Theories
F 3260.2 Inst 1 Lesser Enhancement Allegation
*Add to CC 3260:
If you are not satisfied beyond a reasonable doubt of the truth of an allegation charged in connection with a count, you may nevertheless find a lesser allegation true, if you are convinced beyond a reasonable doubt of the truth of that lesser allegation.
[The allegation of __________ is lesser to the allegation of __________, charged in connection with Count _____.]
[The allegation of __________ is lesser to the allegation of __________, charged in connection with Count _____.]
Thus you are to determine first whether the defendant is guilty of the offense[s] charged in Count _____ [or of any lesser offense on which you have been instructed]. If you find the defendant guilty of the offense charged in Count _____ [or of a lesser offense], you are then to proceed to determine the truth of the additional allegation[s] charged in connection with that count. You are to determine the truth of the charged allegation and of any lesser allegation. In doing so, you have the discretion to choose the order in which you evaluate each allegation and consider the evidence pertaining to it. You may find it productive to consider and reach a tentative conclusion on all charged allegations and lesser allegations before reaching any final verdict[s]. [However, the court cannot accept a true verdict on a lesser allegation unless you have unanimously found the charged allegation not true.]
Points & Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Lesser Enhancement Instruction Should Be Given If Requested—In People v. Majors (1998) 18 C4th 385, 410 the court acknowledged that People v. Turner (1983) 145 CA3d 658, 683-84, permits instruction on “lesser included enhancements,” but held that such an instruction must be requested. The court reached this conclusion on the basis that the sua sponte obligation to instruct on lesser included offenses applies in situations where the jury is forced into an all-or-nothing choice between guilt and innocence. Such a rationale does not apply to enhancements.
CALJIC NOTE: See FORECITE F 17.10d.
F 3260.2 Inst 2 Application Of Reasonable Doubt Rule To Choice Between Enhancement Allegations
*Add to CC 3260:
You are required to resolve in favor of the lesser allegation any reasonable doubt which you have in the choice between a charged allegation and a lesser allegation. Thus if you are convinced beyond a reasonable doubt that either a charged allegation or a lesser allegation is true, but have a reasonable doubt as to which of those allegations is application, you must give the defendant the benefit of that doubt and find the lesser allegation true and the charged allegation not true.
Points & Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Instruction—See PC 1097; People v. Dewberry (1959) 51 C2d 548, 555. [See also FORECITE F 3517 Inst 1.]
A sentencing enhancement which increases the range of punishment to which the defendant is exposed is subject to the due process (5th and 14th Amendments) and fair trial by jury (6th and 14th Amendments) provisions of the federal constitution. (See Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531]; Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348, 2362]; Jones v. U.S. (1999) 526 US 227 [143 LEd2d 311; 119 SCt 1215].)
[See also FORECITE PG VII(C)(32).]
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.11 [Applicability Of Federal Constitutional Rights To Sentencing Decisions]
FORECITE CG 4.4 [Jury Must Consider Affirmative Defense Evidence As To Whether Prosecution Has Proven All Elements Of The Offense]
FORECITE CG 8.4 [Right To Jury Determination Of Lesser Included Offense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 17.10e.
F 3260.2 Inst 3 Choice Between Firearm Use And Arming Allegations
*Add to CC 3260:
[If you are convinced beyond a reasonable doubt that the defendant was armed with a firearm in the commission of the offense[s] charged in Count[s] _____ but you have a reasonable doubt whether the defendant personally used a firearm within the meaning of these instructions] [If you are convinced beyond a reasonable doubt that one of the principals in the commission of the offense[s] charged in Count _____ was armed with or used a firearm but you have a reasonable doubt whether the defendant [himself] [herself] personally used a firearm], you must resolve that doubt in favor of a verdict on the lesser allegation of arming with a firearm, under PC 12022(a), and find the allegation of personal use of a firearm, under PC 12022.5, not true.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—This instruction applies the general Dewberry (People v. Dewberry (1959) 51 C2d 548) principle stated in FORECITE F 17.10a to the most common situation requiring a choice between greater and lesser enhancements—submission of an arming allegation (PC 12022(a)(1)) as a lesser to a charged allegation of personal use of a firearm (PC 12022.5(a)). (See People v. Turner (1983) 145 CA3d 658, 683-84.) Such issues are likely to arise in two contexts: (1) where the defendant is the only perpetrator but there is a question whether his or her conduct (e.g., a passive display of a weapon) constitutes “use” or merely “arming,” and/or (2) in multiple perpetrator cases where there is a question as to which person used a gun. The first bracketed clause is designed for the former, more simple situation, where the question is principally one of characterizing a single defendant’s equivocal conduct. The second bracketed clause frames the question for multiple perpetrator cases.
[See FORECITE F 3517 Inst 2.]
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.11 [Applicability Of Federal Constitutional Rights To Sentencing Decisions]
FORECITE CG 4.4 [Jury Must Consider Affirmative Defense Evidence As To Whether Prosecution Has Proven All Elements Of The Offense]
FORECITE CG 8.4 [Right To Jury Determination Of Lesser Included Offense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 17.10f.
F 3260.3 Duty Of Jury: Verdict Form For Enhancement, Sentencing Factor, Or Prior Conviction—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 3260.4 Duty Of Jury: Verdict Form For Enhancement, Sentencing Factor, Or Prior Conviction—Burden Of Proof Issues
F 3260.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 3260.5 Duty Of Jury: Verdict Form For Enhancement, Sentencing Factor, Or Prior Conviction—Elements And Definitions[Reserved]