California Criminal Jury Instructions (CALCRIM) (2017)

3516. Multiple Counts: Alternative Charges for One Event

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3516.Multiple Counts: Alternative Charges for One Event—Dual
Conviction Prohibited
<Give this paragraph when the law does not specify which crime must be
sustained or dismissed if the defendant is found guilty of both.>
[The defendant is charged in Count with <insert
name of alleged offense> and in Count with <insert
name of alleged offense>. 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.]
<Give the following paragraph when the defendant is charged with both
theft and receiving stolen property offenses based on the same incident.>
[The defendant is charged in Count with <insert
theft offense> and in Count with <insert receiving
stolen property offense>. You must first decide whether the defendant is
guilty of <insert name of theft offense>.If you find the
defendant guilty of <insert name of theft offense>,you must
return the verdict form for <insert name of receiving stolen
property offense> unsigned. If you find the defendant not guilty of
<insert theft offense> you must then decide whether the
defendant is guilty of <insert name of receiving stolen
property offense>.]
New January 2006; Revised June 2007, October 2010, April 2011
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].) This
instruction applies only to those cases in which the defendant may be legally
convicted of only one of the alternative charges. See dual conviction list in Related
Issues section below.
If the evidence raises the issue whether the same act or single event underlies both
a theft conviction and a receiving stolen property conviction, this may be a
question for the jury and the instruction should be modified accordingly.
If the defendant is charged with both theft and receiving stolen property, and the
jury informs the court that it cannot reach a verdict on the theft count, the court
may then instruct the jury to consider the receiving stolen property count.
If the defendant is charged with multiple counts for separate offenses, give
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CALCRIM No. 3515, Multiple Counts: Separate Offenses.
If the case involves separately charged greater and lesser offenses, the court should
give CALCRIM No. 3519. 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].
• Conviction of Receiving Stolen Property Not Possible if Defendant Convicted
of Theft. People v. Ceja (2010) 49 Cal.4th 1, 3–4 [108 Cal.Rptr.3d 568, 229
P.3d 995].
Secondary Sources
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 644.
4Millman, 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.
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Montoya, supra, 33 Cal.4th at p. 1034 [internal quotation marks and citation
omitted].)
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
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[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].)
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