3517. Deliberations and Completion of Verdict Forms: Lesser Offenses or Degrees - Without <em>Stone</em> Instruction (Non-Homicide)
Count charges that the defendant committed <insert name of greater offense, e.g., robbery>.
The offense of <insert name of first lesser offense, e.g., grand theft>[, charged in Count ______,] is a lesser offense of <insert name of greater offense, e.g., robbery>.
[The offense of <insert name of second lesser offense, e.g., petty theft>[, charged in Count ______,] is a lesser offense of <insert name of first lesser offense, e.g., grand theft>.]
You have been given one verdict form for each offense.
You may consider these different offenses in whatever order you wish. I am going to explain how to complete the verdict forms using one order, but you may choose the order to use. As with all the charges in this case, to return a verdict of guilty or not guilty on an offense, you must all agree on that decision.
If you all agree that the People have not proved that the defendant committed any of these offenses, then you must complete each verdict form stating that (he/she) is not guilty.
If you all agree that the People have proved that the defendant is guilty of <insert name of greater offense, e.g., robbery>, complete the verdict form stating that the defendant is guilty of that offense. Do not complete the other verdict form[s] for the lesser offense[s]. You cannot find the defendant guilty of both <insert name of greater offense, e.g., robbery> and the lesser offense[s] of <insert names of lesser offenses, e.g., grand theft, petty theft>.
If you all agree that the defendant is not guilty of <insert name of greater offense, e.g., robbery>, but you agree the People have proved that the defendant is guilty of <insert name of first lesser offense, e.g., grand theft>, you must do two things. First, complete the verdict form stating that the defendant is not guilty of <insert name of greater offense, e.g., robbery>. Then, complete the verdict form stating that the defendant is guilty of <insert name of first lesser offense, e.g., grand theft>. Do not complete the verdict form stating that the defendant is guilty of <insert name of first lesser offense, e.g., grand theft> unless you all agree that the defendant is not guilty of <insert name of greater offense, e.g., robbery>. [Do not complete the other verdict form for the other lesser offense.]
The People have the burden of proving beyond a reasonable doubt that the defendant committed <insert name of greater offense, e.g., robbery> rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of <insert name of greater offense, e.g., robbery>.
<Second Lesser Offense>
[If you all agree that the defendant is not guilty of <insert name of greater offense, e.g., robbery> and not guilty of <insert name of first lesser offense, e.g., grand theft>, but you all agree that the People have proved that the defendant is guilty of <insert name of second lesser offense, e.g., petty theft>, you must do two things. First, complete both verdict forms stating that the defendant is not guilty of <insert name of greater offense, e.g., robbery> and <insert name of first lesser offense, e.g., grand theft>. Second, complete the verdict form stating that the defendant is guilty of <insert name of second lesser offense, e.g., petty theft>. Do not complete the verdict form stating that the defendant is guilty of <insert name of second lesser offense, e.g., petty theft> unless you all agree that the defendant is not guilty of <insert name of greater offense, e.g., robbery> and <insert name of first lesser offense, e.g., grand theft>.
The People have the burden of proving beyond a reasonable doubt that the defendant committed <insert name of greater offense, e.g., robbery> or <insert name of first lesser offense, e.g., grand theft> rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of <insert name of greater offense, e.g.,
robbery> and not guilty of <insert name of first lesser offense, e.g., grand theft>.]
Bench Notes
Instructional Duty
In all non-homicide cases where one or more lesser included offenses is submitted to the jury, whether charged or not, the court has a sua sponte duty to give either this instruction or CALCRIM No. 3518, Deliberations and Completion of Verdict Forms: Lesser Offenses or Degrees—With Stone Instruction (Non-Homicide) Stone Instruction (Non-Homicide). (People v. Breverman (1998) 19 Cal.4th 142, 162 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [duty to instruct on lesser included offenses]; People v. Dewberry (1959) 51 Cal.2d 548, 555-557 [334 P.2d 852] [duty to instruct that if jury has reasonable doubt of greater offense, must acquit of that charge]; People v. Fields (1996) 13 Cal.4th 289, 309-310 [52 Cal.Rptr.2d 282, 914 P.2d 832] [duty to instruct that jury cannot convict of a lesser offense unless it has concluded that defendant is not guilty of the greater offense]; People v. Marshall (1996) 13 Cal.4th 799, 826 [55 Cal.Rptr.2d 347, 919 P.2d 1280] [duty to instruct that jury may render a verdict of partial acquittal on a greater offense]; Stone v. Superior Court (1982) 31 Cal.3d 503, 519 [183 Cal.Rptr. 647, 646 P.2d 809].)
In Stone v. Superior Court, supra, 31 Cal.3d at p. 519, the Supreme Court suggested that the trial court provide the jury with verdict forms of guilty/ not guilty on each of the charged and lesser offenses. The Court later referred to this "as a judicially declared rule of criminal procedure." (People v. Kurtzman (1988) 46 Cal.3d 322, 328 [250 Cal.Rptr. 244, 758 P.2d 572].) However, this is not a mandatory procedure. (Ibid.) If the court chooses not to follow the procedure suggested in Stone, the court may give this instruction. If the jury later declares that it is unable to reach a verdict on a lesser offense, then the court must provide the jury with an opportunity to acquit on the greater offense. (People v. Marshall, supra, 13 Cal.4th at p. 826; Stone v. Superior Court, supra, 31 Cal.3d at p. 519.) In such cases, the court must give CALCRIM No. 3518 and must provide the jury with verdict forms of guilty/not guilty for each offense. (People v. Marshall, supra, 13 Cal.4th at p. 826; Stone v. Superior Court, supra, 31 Cal.3d at p. 519.)
Do not give this instruction for charges of murder or voluntary manslaughter; give CALCRIM No. 640, Procedure for Completion of
Verdict Forms: With Stone Instruction, or CALCRIM No. 641, Procedure for Completion of Verdict Forms: Without Stone Instruction.
The court should not accept a guilty verdict on a lesser offense unless the jury has returned a not guilty verdict on the greater offense. (People v. Fields, supra, 13 Cal.4th at pp. 310-311.) If the court does record a guilty verdict on the lesser offense without first requiring an explicit not guilty finding on the greater offense and then discharges the jury, retrial on the greater offense will be barred. (Id. at p. 307; Pen. Code, § 1023.) If, despite the court's instructions, the jury has returned a guilty verdict on the lesser offense without explicitly acquitting on the greater offense, the court must again instruct the jury that in may not convict of the lesser offense unless it has found the defendant not guilty of the greater offense. (People v. Fields, supra, 13 Cal.4th at p. 310.) The court should direct the jury to reconsider the "lone verdict of conviction of the lesser included offense" in light of this instruction. (Ibid.; Pen. Code, § 1161.)
If, after following the procedures required by Fields, the jury declares that it is deadlocked on the greater offense, then the prosecution must elect one of the following options: (1) the prosecutor may request that the court declare a mistrial on the greater offense without recording the verdict on the lesser offense, allowing the prosecutor to retry the defendant for the greater offense; or (2) the prosecutor may ask the court to record the verdict on the lesser offense and to dismiss the greater offense, opting to accept the current conviction rather than retry the defendant on the greater offense. (People v. Fields, supra, 13 Cal.4th at p. 311.)
The court may not control the sequence in which the jury considers the offenses. (People v. Kurtzman, supra, 46 Cal.3d at p. 330.)
Authority
Lesser Included Offenses-Duty to Instruct. Pen. Code, § 1159; People v. Breverman (1998) 19 Cal.4th 142, 162 [77 Cal.Rptr.2d 870, 960 P.2d 1094].
Lesser Included Offenses-Standard. People v. Birks (1998) 19 Cal.4th 108, 117 [77 Cal.Rptr.2d 848, 960 P.2d 1073].
Reasonable Doubt as to Degree or Level of Offense. Pen. Code, § 1097; People v. Dewberry (1959) 51 Cal.2d 548, 555-557 [334 P.2d 852].
Conviction of Lesser Precludes Retrial on Greater. Pen. Code, § 1023; People v. Fields (1996) 13 Cal.4th 289, 309-310 [52
Cal.Rptr.2d 282, 914 P.2d 832]; People v. Kurtzman (1988) 46 Cal.3d 322, 329 [250 Cal.Rptr. 244, 758 P.2d 572].
Court May Ask Jury to Reconsider Conviction on Lesser Absent Finding on Greater. Pen. Code, § 1161; People v. Fields (1996) 13 Cal.4th 289, 310 [52 Cal.Rptr.2d 282, 914 P.2d 832].
Must Permit Partial Verdict of Acquittal on Greater. People v. Marshall (1996) 13 Cal.4th 799, 826 [55 Cal.Rptr.2d 347, 919 P.2d 1280]; Stone v. Superior Court (1982) 31 Cal.3d 503, 519 [183 Cal.Rptr. 647, 646 P.2d 809].
Secondary Sources
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, §§ 630, 631.
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Judgment, § 61.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, §§ 85.03[2][g], 85.05, 85.20 (Matthew Bender).
Related Issues
Duty to Instruct on Lesser
The court has a sua sponte duty to instruct "on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation] but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 154-155 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
Standard for Determining Lesser Offense
"Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117 [77 Cal.Rptr.2d 848, 960 P.2d 1073].)
Acquittal of Greater Does Not Bar Retrial of Lesser
Where the jury acquits of a greater offense but deadlocks on the lesser, retrial of the lesser is not barred. (People v. Smith (1983) 33 Cal.3d 596, 602 [189 Cal.Rptr. 862, 659 P.2d 1152].)
Lesser Offenses Barred by Statute of Limitations
The defendant may waive the statute of limitations to obtain a jury instruction on a lesser offense that would otherwise be time-barred. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 373 [58 Cal.Rptr.2d 458, 926 P.2d 438].) However, the court has no sua sponte duty to instruct on a lesser that is time-barred. (People v. Diedrich (1982) 31 Cal.3d 263, 283 [182 Cal.Rptr. 354, 643 P.2d 971].) If the court instructs on an uncharged lesser offense that is time-barred without obtaining an explicit waiver from the defendant, it is unclear if the defendant must object at that time in order to raise the issue on appeal or if the defendant may raise the issue for the first time on appeal. (See People v. Stanfill (1999) 76 Cal.App.4th 1137, 1145-1151 [90 Cal.Rptr.2d 885] [reasoning criticized in People v. Smith (2002) 76 Cal.App.4th 1182, 1193-1194 [120 Cal.Rptr.2d 185]].) The better practice is to obtain an explicit waiver on the statute of limitations when instructing on a time-barred lesser.
Conviction of Greater and Lesser
The defendant cannot be convicted of a greater and a lesser offense. (People v. Moran (1970) 1 Cal.3d 755, 763 [83 Cal.Rptr. 411, 463 P.2d 763].) If the evidence supports the conviction on the greater offense, the conviction on the lesser offense should be set aside. (Ibid.)
(New January 2006)