California Criminal Jury Instructions (CALCRIM) (2017)

3519. Deliberations and Completion of Verdict Forms: Lesser Offenses—For Use When Lesser Included Offenses and Greater Crimes Are Separately Charged (Non- Homicide)

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3519.Deliberations and Completion of Verdict Forms: Lesser
Offenses—For Use When Lesser Included Offenses and Greater
Crimes Are Separately Charged (Non-Homicide)
If all of you find that the defendant is not guilty of a greater charged
crime, you may find (him/her) guilty of a lesser crime if you are
convinced beyond a reasonable doubt that the defendant is guilty of that
lesser crime. A defendant may not be convicted of both a greater and
lesser crime for the same conduct.
[Now I will explain to you the crimes affected by this instruction
[including lesser crimes of the lesser crimes]:]
[<insert crime>, as charged in Count , is a lesser
crime to <insert crime> [as charged in Count .]]
[<insert crime>, as charged in Count , is a lesser
crime to <insert crime> [as charged in Count .]]
[<insert crime>, as charged in Count , is a lesser
crime to <insert crime> [as charged in Count .]]
It is up to you to decide the order in which you consider each greater
and lesser crime and the relevant evidence, but I can accept a verdict of
guilty of the lesser crime only if you have found the defendant not
guilty of the greater crime.
[[For (the/any) count in which a greater and lesser crime is charged,]
(Y/y)ou will receive verdict forms of guilty and not guilty for [each/the]
greater crime and lesser crime. Follow these directions before you give
me any completed and signed, final verdict form. Return any unused
verdict forms to me, unsigned.
1. If all of you agree the People have proved that the defendant is
guilty of the greater crime, complete and sign the verdict form
for guilty of that crime. Do not complete or sign any verdict
form for the [corresponding] lesser crime.
2. If all of you cannot agree whether the People have proved that
the defendant is guilty of the greater crime, inform me of your
disagreement and do not complete or sign any verdict form for
that crime or the [corresponding] lesser crime.
3. If all of you agree the People have not proved that the defendant
is guilty of the greater crime and also agree the People have
proved that (he/she) is guilty of the lesser crime, complete and
sign the verdict form for not guilty of the greater crime and the
verdict form for guilty of the [corresponding] lesser crime. Do
not complete or sign any other verdict forms [for those charges].
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4. If all of you agree the People have not proved that the defendant
is guilty of the greater or lesser crime, complete and sign the
verdict form for not guilty of the greater crime and the verdict
form for not guilty of the [corresponding] lesser crime.
5. If all of you agree the People have not proved that the defendant
is guilty of the greater crime, but all of you cannot agree on a
verdict for the lesser crime, complete and sign the verdict form
for not guilty of the greater crime and inform me about your
disagreement on the lesser crime.]
Whenever I tell you the People must prove something, I mean they must
prove it beyond a reasonable doubt [unless I specifically tell you
otherwise].
New June 2007, Revised August 2012, February 2015
BENCH NOTES
Instructional Duty
In all cases in which one or more lesser included offenses are submitted to the jury,
whether charged or not, the court has a sua sponte duty to instruct on the
applicable procedures. (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 included offense unless it
has concluded that defendant is not guilty of the greater offense]; Stone v. Superior
Court (1982) 31 Cal.3d 503, 519 [183 Cal.Rptr. 647, 646 P.2d 809] [duty to give
jury opportunity to render a verdict of partial acquittal on a greater offense],
clarified in People v. Marshall (1996) 13 Cal.4th 799, 826 [55 Cal.Rptr.2d 347, 919
P.2d 1280] [no duty to inquire about partial acquittal in absence of indication jury
may have found defendant not guilty of greater offense]).
Whenever greater and lesser included crimes are separately charged the court must
use this instruction instead of CALCRIM No. 3517 or CALCRIM No. 3518.
Do not give this instruction for charges of murder or manslaughter; instead give
the appropriate homicide instruction for lesser included offenses: CALCRIM No.
640, Deliberations and Completion of Verdict Forms: For Use When Defendant is
Charged With First Degree Murder and Jury Is Given Not Guilty Forms for Each
Level of Homicide, CALCRIM No. 641, Deliberations and Completion of Verdict
Forms: For Use When Defendant Is Charged With First Degree Murder and Jury
Is Given Only One Not Guilty Verdict Form for Each Count; Not to Be Used When
Both Voluntary and Involuntary Manslaughter Are Lesser Included Offenses,
CALCRIM No. 642, Deliberations and Completion of Verdict Forms: For Use
CALCRIM No. 3519 POST-TRIAL: CONCLUDING
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When Defendant Is Charged With Second Degree Murder and Jury Is Given Not
Guilty Forms for Each Level of Homicide, or CALCRIM No. 643, Deliberations
and Completion of Verdict Forms: For Use When Defendant Is Charged With
Second Degree Murder and Jury Is Given Only One Not Guilty Verdict Form for
Each Count; Not to Be Used When Both Voluntary and Involuntary Manslaughter
Are Lesser Included Offenses.
The court should tell the jury it may not return a guilty verdict on a lesser included
offense unless it has found the defendant not guilty of the greater offense. (People
v. Fields, supra,13 Cal.4th at pp. 310–311.) If the jury announces that it is
deadlocked on the greater offense but, despite the court’s instructions, has returned
a guilty verdict on the lesser included offense, the court should again instruct the
jury that it may not convict of the lesser included offense unless it has found the
defendant not guilty of the greater offense. (Ibid.) 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 the jury is deadlocked on the
greater offense but the court nevertheless records a guilty verdict on the lesser
included offense and then discharges the jury, retrial on the greater offense will be
barred. (People v. Fields, supra, 13 Cal.4th at p. 307; Pen. Code, § 1023.)
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 If Jury Deadlocked 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 (4th ed. 2012) Criminal Trial,
§§ 708–712.
6 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Judgment,
POST-TRIAL: CONCLUDING CALCRIM No. 3519
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§ 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 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
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 Included 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) 98
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 included 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 included offense should be set aside. (Ibid.)
3520–3529. Reserved for Future Use
CALCRIM No. 3519 POST-TRIAL: CONCLUDING
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