640. Procedure for Completion of Verdict Forms: With Stone Instruction

You have been given several verdict forms for (the/each) count of murder [and manslaughter]. [These instructions apply to each count separately.]

In connection with Count[s] , I have given you <insert number of verdict forms> separate verdict forms. These are: Guilty/ Not Guilty of first degree murder and second degree murder [and (voluntary manslaughter[,]/ [and] involuntary manslaughter)].

You may consider these different kinds of homicide 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 a count, you must all agree on that decision.

If you all agree the People have not proved the defendant committed an unlawful killing, then you must complete each verdict form stating that (he/she) is not guilty.

If you all agree the People have proved the defendant killed unlawfully, you must decide what kind or degree of unlawful killing the People have proved.

If you all agree that the People have proved that the unlawful killing was first degree murder, complete the verdict form stating that the defendant is guilty of first degree murder. Do not complete the other verdict forms for this count.

If you all agree that the defendant is not guilty of first degree murder, but you agree the People have proved the killing was second degree murder, you must do two things. First, complete the verdict form stating that the defendant is not guilty of first degree murder. Then, complete the verdict form stating that the defendant is guilty of second degree murder. Do not complete the verdict form stating that the defendant is guilty of second degree murder unless you all agree that the defendant is not guilty of first degree murder. Do not complete the other verdict forms for this count.

If you all agree the People have proved the defendant committed murder, but you cannot all agree on which degree they have proved, do not complete any verdict forms. Instead, the foreperson should send a note reporting that you cannot all agree on the degree of murder that has been proved.

If you all agree that the defendant is not guilty of first degree murder, but you cannot all agree on whether or not the People have proved the defendant committed second degree murder, then you must do two things. First, complete the verdict form stating that the defendant is not guilty of first degree murder. Second, the foreperson should send a note reporting that you cannot all agree that second degree murder has been proved. Do not complete any other verdict forms for this count.

The People have the burden of proving that the defendant committed first degree murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of first degree murder.

<A. Voluntary Manslaughter: Lesser Included>

[If you all agree that the defendant is not guilty of first or second degree murder, but you all agree the People have proved that (he/she) is guilty of voluntary manslaughter, then you must do two things. First, complete the verdict forms stating that (he/ she) is not guilty of first and second degree murder. Second, complete the verdict form stating that (he/she) is guilty of voluntary manslaughter. Do not complete the verdict form stating that the defendant is guilty of voluntary manslaughter unless you all agree that the defendant is not guilty of murder. Do not complete any other verdict forms for this count.

If you all agree that the defendant is not guilty of first or second degree murder, but you cannot all agree on whether or not the People have proved the defendant committed voluntary manslaughter, then you must do two things. First, complete both verdict forms stating that the defendant is not guilty of first and second degree murder. Second, the foreperson should send a note reporting that you cannot all agree that voluntary manslaughter has been proved.

The People have the burden of proving that the defendant committed murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of murder.]

<B. Involuntary Manslaughter: Lesser Included>

[If you all agree that the defendant is not guilty of murder or voluntary manslaughter, but you all agree the People have proved that (he/she) is guilty involuntary manslaughter, then you must do two things. First, complete the verdict forms stating that (he/she) is not guilty of first degree murder, second degree murder, and voluntary manslaughter. Second, complete the verdict form stating that (he/she) is guilty of involuntary manslaughter. Do not complete the verdict form stating that the defendant is guilty of involuntary manslaughter unless you all agree that the defendant is not guilty of murder or voluntary manslaughter.

If you all agree that the defendant is not guilty of murder or voluntary manslaughter, but you cannot all agree whether or not the People have proved the defendant committed involuntary manslaughter, then you must do two things. First, complete all three verdict forms stating that the defendant is not guilty of first degree murder, second degree murder, and voluntary manslaughter. Second, the foreperson should send a note reporting that you cannot all agree that involuntary manslaughter has been proved.

The People have the burden of proving that the defendant committed murder or voluntary manslaughter rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of murder and not guilty of voluntary manslaughter.]

Bench Notes

Instructional Duty

In all homicide cases where one or more lesser offense is submitted to the jury, the court has a sua sponte duty to give this instruction or CALCRIM No. 641, Procedure for Completion of Verdict Forms: Without Stone Instruction. (See People v. Avalos (1984) 37 Cal.3d 216, 228 [207 Cal.Rptr. 549, 689 P.2d 121] [must instruct jury that it must be unanimous as to degree of murder]; People v. Dixon (1979) 24 Cal.3d 43, 52 [154 Cal.Rptr. 236, 592 P.2d 752] [jury must determine degree]; 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, 329 [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. 641, Procedure for Completion of Verdict Forms: Without Stone Instruction, 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 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.)

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, surpa, 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, surpa, 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, surpa, 13 Cal.4th at p. 311.)

The court may not control the sequence in which the jury considers the various homicide offenses. (People v. Kurtzman, supra, 46 Cal.3d at pp. 322, 330.)

Do not give this instruction if felony murder is the only theory for first degree murder. (People v. Mendoza (2000) 23 Cal.4th 896, 908-909 [98 Cal.Rptr.2d 431, 4 P.3d 265].)

This instruction should be modified if the highest charge is second degree murder or voluntary manslaughter. (People v. Aikin (1971) 19 Cal.App.3d 685, 700 [97 Cal.Rptr. 251] [error to instruct jury that it must agree on degree of murder where case submitted to jury on second degree murder only], disapproved on other grounds in People v. Lines (1975) 13 Cal.3d 500, 513 [119 Cal.Rptr. 225, 531 P.2d 793].)

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].

Degree to Be Set by Jury. Pen. Code, § 1157; People v. Avalos (1984) 37 Cal.3d 216, 228 [207 Cal.Rptr. 549, 689 P.2d 121]; People v. Dixon (1979) 24 Cal.3d 43, 52 [154 Cal.Rptr. 236, 592 P.2d 752].

Reasonable Doubt as to Degree. Pen. Code, § 1097; People v. Morse (1964) 60 Cal.2d 631, 657 [36 Cal.Rptr. 201, 388 P.2d 33]; People v. Dewberry (1959) 51 Cal.2d 548, 555-557 [334 P.2d 852].

Conviction of Lesser Precludes Re-trial 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) Trial, § 631.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.20 (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, §§ 142.01[3][e], 142.02[3][c] (Matthew Bender).

(New January 2006)