SERIES 3500 POST-TRIAL: CONCLUDING
F 3515.1 Multiple Counts: Basic Instructions
TABLE OF CONTENTS
F 3515.1 Inst 1 Improper To Assume Crime Was Committed
F 3515.1 Inst 2 Verdict Need Not Be Reached
F 3515.1 Inst 3 (a & b) Multiple Counts: Decision On One Court Not To Influence The Other
F 3515.1 Inst 4 (a-c) Multiple Defendants, Multiple Counts: Jury Must Find On Each
F 3515.1 Inst 5 Series Of Wrongful Taking Acts May Constitute Only A Single Offense
F 3515.1 Inst 6 Separate Consideration Of Multiple Counts: Alternative Instruction
F 3515.1 NOTES
F 3515.1 Note 1 Multiple Counts: Inconsistent Verdicts
F 3515.1 Note 2 Multiple Convictions Improper For Greater And Lesser Included Offenses
Return to Series 3500 Table of Contents.
F 3515.1 Inst 1 Improper To Assume Crime Was Committed
*Modify CC 3515, sentence 1, as follows [added language is underlined]:
Each of the counts charged in this case is a separate alleged crime [except for Counts __, which are charged as alternative offenses].
Points and Authorities
See FORECITE F 103.2 Inst 2.
F 3515.1 Inst 2 Verdict Need Not Be Reached
*Modify CC 3515, sentence 2, as follows [added language is underlined]:
You must consider each count separately and return a separate verdict for each one, if you can, [except for Counts __, which are for lesser included offenses and will be addressed in other instructions].
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 3515.1 Inst 3 (a & b) Multiple Counts: Decision On One Court Not To Influence The Other
*Add to CC 3515:
Alternative a:
Your decision as to any one count must not influence in any way your decision as to any other count.
Alternative b:
A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not influence in any way your verdict on any other count.
[Cf. Washington Pattern Jury Instructions—Criminal, WPIC 3.01 [Multiple Counts—Single Defendant] (West, 2nd ed. 1994).]
Points and Authorities
It is fundamental that each offense, and the evidence pertaining to it, be considered separately. (See U.S. v. Nabors (8th Cir. 1985) 762 F2d 642, 652; see also generally Bean v. Calderon (9th Cir. 1998) 163 F3d 1073; People v. Ochoa (2001) 26 C4th 398.)
Cf., FORECITE F 103.4 Inst 2.
Identification Of Parties—See FORECITE F 100.2 Note 1.
F 3515.1 Inst 4 (a-c) Multiple Defendants, Multiple Counts: Jury Must Find On Each
*When the charges involve multiple defendants and multiple counts, the following instruction should be given (CC 3315 addresses multiple counts with one defendant):
Alternative a:
As you know, _____ defendants are on trial here: __________ <name them>. Because some of the charges in this case have been made against some of the defendants and not against others, I want to tell you once again which individuals were charged with which crimes: __________ <e.g.: Ralph Rich has been charged with conspiracy and possession, Patty Poor has been charged with conspiracy and distribution>. You are required to give separate consideration to the evidence against and in behalf of each individual defendant. Each defendant is entitled to your separate consideration. Do not think of the defendants as a group. I also remind you that you must consider separately each crime charged against each individual defendant.
Alternative b:
You must decide the case of each defendant or each crime charged against that defendant separately. Your verdict on any count as to any defendant should not influence in any way your verdict on any other count or as to any other defendant.
[Cf. Washington Pattern Jury Instructions—Criminal, WPIC 3.03 [Multiple Defendants—Multiple Counts] (West, 2nd ed. 1994).]
Alternative c:
You will recall that I explained to you earlier that the defendant _____, has been charged with _______ different crimes: [List them]. Each of these is a separate crime, and you should consider each one separately and return a separate verdict for each.
[Source: Federal Judicial Center, Pattern Criminal Jury Instructions 46, Alternative A [Separate Consideration of Multiple Counts and/or Multiple Defendants Elements of the Offense Other Comments of the Required Proof Alternative A: Multiple Counts, One Defendant] (1988).]
Points and Authorities
CALCRIM contains no instruction specifically designed for use in a case involving multiple counts and multiple defendants. (See CJ 17.00—multiple defendants and CJ 17.02—several counts, single defendant.) The above proposed instruction (adapted from Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. #46, Alternative B and C, p. 56.) addresses the situation not covered by the CALCRIM instructions.
[See also, FORECITE F 203 Inst 1.]
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 12.3 [Multiplicity]
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 17.02b.
F 3515.1 Inst 5 Series Of Wrongful Taking Acts May Constitute Only A Single Offense
*Add the following to CC 3515 when appropriate:
A series of wrongful acts may constitute a single offense.
When those acts are committed pursuant to one general intent or impulse and one plan, the acts constitute a single offense.
If you find beyond a reasonable doubt that the acts of the defendant constituted _______________ <alleged offense> as defined in instruction # ______, and if you find that those acts were committed pursuant to one general intent or impulse and one plan, then you should only convict the defendant of a single offense.
Points and Authorities
In People v. Sullivan (1978) 80 CA3d 16, the defendant was convicted of 12 counts of grand theft arising from the disposition of proceeds from the sale of a home. Defendant maintained that each offense was committed against the same victims pursuant to one criminal intent or one plan and, therefore, she could be properly convicted of only violation. To support this theory, defendant requested that instruction set forth above. The trial court denied defendant’s request. She appealed, contending reversal was required due to instructional error. The Court of Appeal agreed, referring to People v. Bailey (1961) 55 C2d 514, 518-20.
In Bailey, the Supreme Court held that whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case. A defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows the offenses were separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan. The evidence in Sullivan did not compel the conclusion that only one offense was involved in the takings alleged in the information. However, substantial evidence did exist to this effect. Therefore, the trial court erred in failing to give the instruction requested by the defendant. That instruction would have permitted the jury to pass upon the question of whether the acts were committed pursuant to one general intent or impulse and one plan.
The Sullivan/Bailey rule applies in theft and embezzlement cases. (Bailey 55 C2d at 519; see also In re David D. (1997) 52 CA4th 304 [Bailey doctrine should not be extended to allow a prosecutor to aggregate numerous misdemeanor graffiti offenses committed against multiple victims into one felony charge].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 12.3 [Multiplicity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
For briefing on this issue, see Brief Bank # B-969.
There is a split in authority as to whether a non-violent taking from multiple victims pursuant to an indivisible transaction is a single offense or multiple offenses. (See FORECITE F 17.02 n3.)
If force or fear is applied to two victims in joint possession of property, two convictions of robbery are proper. (People v. Ramos (1982) 30 C3d 553, 589; People v. Clay (1984) 153 CA3d 433, 459.)
CALJIC NOTE: See FORECITE F 17.02a.
F 3515.1 Inst 6 Separate Consideration Of Multiple Counts: Alternative Instruction
*Replace 2nd sentence of CC 3515 with the following:
Evidence applicable to each offense charged must be considered as if it were the only accusation before the jury.
Points and Authorities
In People v. Catlin (2001) 26 C4th 81, 153, the California Supreme Court suggested that this instruction and CJ 17.02 serve the same purpose. Hence, it would not be proper to give the above instruction instead of CJ 17.02 or its CALCRIM equivalent, CC 3515.
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 12.3 [Multiplicity]
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 17.02e.
F 3515.1 NOTES
F 3515.1 Note 1 Multiple Counts: Inconsistent Verdicts
See Annotation, Inconsistency of criminal verdict as between different counts of indictment or information, 18 ALR3d 259 and Later Case Service.
CALJIC NOTE: See FORECITE F 17.02 n1.
F 3515.1 Note 2 Multiple Convictions Improper For Greater And Lesser Included Offenses
(See FORECITE LIO V(A).)
CALJIC NOTE: See FORECITE F 17.02 n15.