3518. Deliberations and Completion of Verdict Forms: Lesser Offenses or Degrees - With <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>.]

For each of these offenses, you have been given two separate verdict forms, one stating that the defendant is "Guilty" and the other stating that the defendant is "Not Guilty" of that 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 forms for this count or 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 forms for this count or for the lesser offense[s].

If you all agree that the People have proved that the defendant is guilty of either <insert name of greater offense, e.g., robbery> or <insert name of first lesser offense, e.g., grand theft>, but you cannot all agree on which offense they have proved, do not complete any verdict forms. Instead, the foreperson should send a note reporting that you cannot all agree on which offense has been proved.

If you all agree that the defendant is not guilty of <insert name of greater offense, e.g., robbery>, but you cannot all agree on whether or not the People have proved the defendant is guilty of <insert name of first lesser offense, e.g., grand theft>, then 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>. Second, the foreperson should send a note reporting that you cannot all agree that <insert name of first lesser offense, e.g., grand theft> has been proved. Do not complete any other verdict forms for this count or the lesser offense[s].

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>, CALCRIM No. 3518 but you 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 the 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>. Do not complete any other verdict forms for this count or for the lesser offenses.

If 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>, but you cannot all agree on whether or not the People have proved that the defendant is guilty of <insert name of second lesser offense, e.g., petty theft>, then you must do two things. First, complete the 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, the foreperson should send a note reporting that you cannot all agree that <insert name of second lesser offense, e.g., petty theft> has been proved. Do not complete any other verdict forms for this count or the lesser offenses.

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. 3517, Deliberations and Completion of Verdict Forms: Lesser Offenses or Degrees—Without 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 CALCRIM No. 3517 in place of this instruction. If the jury later declares that it is unable to reach a verdict on a lesser offense, then the court must give this instruction, providing 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.)

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].

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.

6 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

See the Related Issues section of CALCRIM No. 3517, Deliberations and Completion of Verdict Forms: Lesser Offenses or Degrees—Without Stone Instruction (Non-Homicide) Stone Instruction (Non-Homicide).

(New January 2006)