3516. Multiple Counts: Alternative Charges for One Event

<Alternative A—no lesser included offense>

[The defendant is charged in Count with <insert name of alleged offense, e.g., theft> and in Count with <insert name of alleged offense, e.g., receiving stolen property>. These are alternative charges. If you find the defendant guilty of one of these charges, you must find (him/her) not guilty of the other. You cannot find the defendant guilty of both.]

<Alternative B—lesser included offense[s] to one count>

[Alternative charges are alleged in this case. The defendant is charged in Count with <insert name of most serious charged offense, e.g., robbery>. <insert name[s] of lesser included offense[s], e.g., grand theft> (is/are) [a] lesser included offense[s] to that charge. The defendant is also charged in Count with <insert name of other charged offense, e.g., receiving stolen property>. If you find the defendant guilty of <insert name of most serious charged offense> or of the lesser offense[s] of <insert name[s] of lesser included offense[s]>, you must find (him/her) not guilty of <insert name of other charged offense>. Similarly, if you find the defendant guilty of <insert name of other charged offense>, you must find (him/her) not guilty of <insert name of most serious charged offense> and not guilty of the lesser offense[s] of <insert name[s] of lesser included offense[s]>.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction where the defendant is charged in the alternative with multiple counts for a single event. (See People v. Allen (1999) 21 Cal.4th 846, 851 [89 Cal.Rptr.2d 279, 984 P.2d 486]; People v. Jaramillo (1976) 16 Cal.3d 752, 757 [129 Cal.Rptr. 306, 548 P.2d 706].) When one offense is necessarily included in another, the defendant cannot be convicted of both. (People v. Ortega (1998) 19 Cal.4th 686, 692 [80 Cal.Rptr.2d 489, 968 P.2d 48].) This is to be distinguished from the question of whether the defendant may be punished for two separate charges arising out of a single event. (Ibid.) This instruction applies only to those cases in which the defendant may be legally convicted of only one of the alternative charges.

If the defendant is charged with multiple counts for separate offenses, give CALCRIM No. 3515, Multiple Counts: Separate Offenses.

If the case involves a lesser included offense, the court should give either CALCRIM No. 3517, Deliberations and Completion of Verdict Forms: Lesser Offenses or Degrees—Without Stone Instruction (Non-Homicide) Stone Instruction (Non-Homicide), or CALCRIM No. 3518, Deliberations and Completion of Verdict Forms: Lesser Offenses or Degrees—With Stone Instruction (Non-Homicide) Stone Instruction (Non-Homicide). (See People v. Fields (1996) 13 Cal.4th 289, 308-311 [52 Cal.Rptr.2d 282, 914 P.2d 832].) Do not give this instruction unless the case also involves alternative charges. In such cases, the court should give alternative B.

Because the law is unclear in this area, the court must decide whether to give this instruction if the defendant is charged with specific sexual offenses and, in the alternative, with continuous sexual abuse under Penal Code section 288.5. If the court decides not to so instruct, and the jury convicts the defendant of both continuous sexual abuse and one or more specific sexual offenses that occurred during the same period, the court must then decide which conviction to dismiss.

Authority

Prohibition Against Dual Conviction. People v. Ortega (1998) 19 Cal.4th 686, 692 [80 Cal.Rptr.2d 489, 968 P.2d 48]; People v. Sanchez (2001) 24 Cal.4th 983, 988 [103 Cal.Rptr.2d 698, 16 P.3d 118]; People v. Allen (1999) 21 Cal.4th 846, 851 [89 Cal.Rptr.2d 279, 984 P.2d 486]; People v. Jaramillo (1976) 16 Cal.3d 752, 757 [129 Cal.Rptr. 306, 548 P.2d 706].

Instructional Requirements. See People v. Allen (1999) 21 Cal.4th 846, 851 [89 Cal.Rptr.2d 279, 984 P.2d 486]; People v. Jaramillo (1976) 16 Cal.3d 752, 757 [129 Cal.Rptr. 306, 548 P.2d 706].

Secondary Sources

5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 644.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).

Related Issues

Dual Conviction May Not Be Based on Necessarily Included Offenses

"[T]his court has long held that multiple convictions may not be based on necessarily included offenses. The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense." (People v. Ortega (1998) 19 Cal.4th 686, 692 [80 Cal.Rptr.2d 489, 968 P.2d 48] [emphasis in original, citations and internal quotation marks omitted]; see also People v. Montoya (2004) 33 Cal.4th 1031, 1034 [16 Cal.Rptr.3d 902, 94 P.3d 1098].) "In deciding whether an offense is necessarily included in another, we apply the elements test, asking whether all the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense." (People v. Montoya, supra, 33 Cal.4th at p. 1034 [internal quotation marks and citation omitted].)

Some courts have also applied the "accusatory pleading" test to determine whether one offense is necessarily included in another. (See People v. Malfavon (2002) 102 Cal.App.4th 727, 742 [125 Cal.Rptr.2d 618] [court must compare "the facts actually alleged in the accusatory pleading" to determine if one offense is necessarily included in the other].) In People v. Montoya, supra, 33 Cal.4th at p. 1034, however, the Supreme Court observed that the "accusatory pleading" test is generally used "to determine whether to instruct a jury on an uncharged lesser offense." The Court further noted that "[s]ome Court of Appeal decisions have concluded that the accusatory pleading test . . . does not apply to considerations of whether multiple convictions are proper." (Id. at p. 1036 [internal quotation marks and citation omitted].) The Court declined to decide this issue. (Ibid.) Justice Chin, in a concurring opinion, expressed the opinion that the "accusatory pleading" test should not be used to determine whether one offense is necessarily included in another. (Id. at p. 1039.)

Dual Conviction—Examples of Offense Where Prohibited or Permitted

The courts have held that dual conviction is prohibited for the following offenses:

Robbery and theft. People v. Ortega (1998) 19 Cal.4th 686, 699 [80 Cal.Rptr.2d 489, 968 P.2d 48].

Robbery and receiving stolen property. People v. Stephens (1990) 218 Cal.App.3d 575, 586-587 [267 Cal.Rptr. 66].

Theft and receiving stolen property. People v. Jaramillo (1976) 16 Cal.3d 752, 757 [129 Cal.Rptr. 306, 548 P.2d 706].

Battery and assault. See People v. Ortega (1998) 19 Cal.4th 686, 693 [80 Cal.Rptr.2d 489, 968 P.2d 48].

Forgery and check fraud. People v. Hawkins (1961) 196 Cal.App.2d 832, 838 [17 Cal.Rptr. 66].

Forgery and credit card fraud. People v. Cobb (1971) 15 Cal.App.3d 1, 4 [93 Cal.Rptr. 152].

The courts have held that dual conviction is permitted for the following offenses (although dual punishment is not):

Burglary and theft. People v. Bernal (1994) 22 Cal.App.4th 1455, 1458 [27 Cal.Rptr.2d 839].

Burglary and receiving stolen property. People v. Allen (1999) 21 Cal.4th 846, 866 [89 Cal.Rptr.2d 279, 984 P.2d 486].

Carjacking and grand theft. People v. Ortega (1998) 19 Cal.4th 686, 693 [80 Cal.Rptr.2d 489, 968 P.2d 48].

Carjacking and robbery. People v. Ortega (1998) 19 Cal.4th 686, 700 [80 Cal.Rptr.2d 489, 968 P.2d 48].

Carjacking and unlawful taking of a vehicle. People v. Montoya (2004) 33 Cal.4th 1031, 1035 [16 Cal.Rptr.3d 902, 94 P.3d 1098].

Murder and gross vehicular manslaughter while intoxicated. People v. Sanchez (2001) 24 Cal.4th 983, 988 [103 Cal.Rptr.2d 698, 16 P.3d 118].

Murder and child abuse resulting in death. People v. Malfavon (2002) 102 Cal.App.4th 727, 743 [125 Cal.Rptr.2d 618].

Joy Riding and Receiving Stolen Property

A defendant cannot be convicted of both joy riding (Veh. Code, § 10851) and receiving stolen property (Pen. Code, § 496), unless the record clearly demonstrates that the joy riding conviction is based exclusively on the theory that the defendant drove the car, temporarily depriving the owner of possession, not on the theory that the defendant stole the car. (People v. Allen (1999) 21 Cal.4th 846, 851 [89 Cal.Rptr.2d 279, 984 P.2d 486]; People v. Jaramillo (1976) 16 Cal.3d 752, 758-759 [129 Cal.Rptr. 306, 548 P.2d 706]; People v. Austell (1990) 223 Cal.App.3d 1249, 1252 [273 Cal.Rptr. 212].)

Accessory and Principal

In People v. Prado (1977) 67 Cal.App.3d 267, 273 [136 Cal.Rptr. 521], and People v. Francis (1982) 129 Cal.App.3d 241, 248 [180 Cal.Rptr. 873], the courts held that the defendant could not be convicted as both a principal and as an accessory after the fact for the same offense. However, later opinions have criticized these cases, concluding, "there is no bar to conviction as both principal and accessory where the evidence shows distinct and independent actions supporting each crime." (People v. Mouton (1993) 15 Cal.App.4th 1313, 1324 [19 Cal.Rptr.2d 423]; People v. Riley (1993) 20 Cal.App.4th 1808, 1816 [25 Cal.Rptr.2d 676]; see also People v. Nguyen (1993) 21 Cal.App.4th 518, 536, fn. 6 [26 Cal.Rptr.2d 323].)

(New January 2006)