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
Judicial Council of California Criminal Jury Instructions (2023 edition)
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J. CHARGE TO JURY
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
[For each count charging murder,] (Y/y)ou (have been/will be) given
verdict forms for guilty and 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, but I can accept a verdict of guilty or not guilty of
<insert second degree murder or, if the jury is not instructed
on second degree murder as a lesser included offense, each form of
manslaughter, voluntary and/or involuntary, on which the jury is instructed>
only if all of you have found the defendant not guilty of first degree
murder, [and I can accept a verdict of guilty or not guilty of (voluntary/
involuntary/voluntary or involuntary) manslaughter only if all of you
have found the defendant not guilty of both first and second degree
murder].
[As with all of the charges in this case,] (To/to) return a verdict of guilty
or not guilty on a count, you must all agree on that decision.
Follow these directions before you give me any completed and signed
final verdict form[s]. [Return the unused verdict form[s] to me,
unsigned.]
1. If all of you agree that the People have proved beyond a
reasonable doubt that the defendant is guilty of first degree
murder, complete and sign that verdict form. Do not complete or
sign any other verdict forms [for that count].
2. If all of you cannot agree whether the defendant is guilty of first
degree murder, inform me that you cannot reach an agreement
and do not complete or sign any verdict forms [for that count].
2. <In addition to paragraphs 1-2, give the following if the jury is
instructed on second degree murder as a lesser included offense.>
[3. If all of you agree that the defendant is not guilty of first degree
murder but also agree that the defendant is guilty of second
degree murder, complete and sign the form for not guilty of first
degree murder and the form for guilty of second degree murder.
Do not complete or sign any other verdict forms [for that count].
4. If all of you agree that the defendant is not guilty of first degree
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murder but cannot agree whether the defendant is guilty of
second degree murder, complete and sign the form for not guilty
of first degree murder and inform me that you cannot reach
further agreement. Do not complete or sign any other verdict
forms [for that count].]
4. <In addition to paragraphs 1-4, give the following if the jury is
instructed on second degree murder as the only lesser included
offense.>
[5. If all of you agree that the defendant is not guilty of first degree
murder and not guilty of second degree murder, complete and
sign the verdict forms for not guilty of both. Do not complete or
sign any other verdict forms [for that count].]
[5. <In addition to paragraphs 1-4, give the following if the jury is
instructed on second degree murder and only one form of
manslaughter (voluntary or involuntary) as lesser included offenses.>
[5. If all of you agree that the defendant is not guilty of first degree
murder and not guilty of second degree murder, but also agree
that the defendant is guilty of (voluntary/involuntary)
manslaughter, complete and sign the forms for not guilty of first
degree murder and not guilty of second degree murder and the
form for guilty of (voluntary/involuntary) manslaughter. Do not
complete or sign any other verdict forms [for that count].
6. If all of you agree that the defendant is not guilty of first degree
murder and not guilty of second degree murder, but cannot agree
whether the defendant is guilty of (voluntary/involuntary)
manslaughter, complete and sign the forms for not guilty of first
degree murder and not guilty of second degree murder and
inform me that you cannot reach further agreement. Do not
complete or sign any other verdict forms [for that count].
7. If all of you agree that the defendant is not guilty of first degree
murder, not guilty of second degree murder, and not guilty of
(voluntary/involuntary) manslaughter, complete and sign the
verdict forms for not guilty of each crime. Do not complete or
sign any other verdict forms [for that count].]
7. <In addition to paragraphs 1-4, give the following if the jury is
instructed on second degree murder and both voluntary and
involuntary manslaughter as lesser included offenses.>
[5. If all of you agree that the defendant is not guilty of first degree
murder and not guilty of second degree murder, complete and
sign the forms for not guilty of first degree murder and not guilty
of second degree murder.
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6. If all of you agree on a verdict of guilty or not guilty of voluntary
or involuntary manslaughter, complete and sign the appropriate
verdict form for each charge on which you agree. You may not
find the defendant guilty of both voluntary and involuntary
manslaughter [as to any count]. Do not complete or sign any
other verdict forms [for that count].
7. If you cannot reach agreement as to voluntary manslaughter or
involuntary manslaughter, inform me of your disagreement. Do
not complete or sign any verdict form for any charge on which
you cannot reach agreement.]
7. <In addition to paragraphs 1-2, give the following if the jury is not
instructed on second degree murder and the jury is instructed on one
form of manslaughter (voluntary or involuntary) as the only lesser
included offense.>
[3. If all of you agree that the defendant is not guilty of first degree
murder but also agree that the defendant is guilty of (voluntary/
involuntary) manslaughter, complete and sign the form for not
guilty of first degree murder and the form for guilty of
(voluntary/involuntary) manslaughter. Do not complete or sign
any other verdict forms [for that count].
4. If all of you agree that the defendant is not guilty of first degree
murder but cannot agree whether the defendant is guilty of
(voluntary/involuntary) manslaughter, complete and sign the form
for not guilty of first degree murder and inform me that you
cannot reach further agreement. Do not complete or sign any
other verdict forms [for that count].
5. If all of you agree that the defendant is not guilty of first degree
murder or (voluntary/involuntary) manslaughter, complete and
sign the verdict forms for not guilty of each crime. Do not
complete or sign any other verdict forms [for that count].]
5. <In addition to paragraphs 1-2, give the following if the jury is
instructed on both voluntary and involuntary manslaughter, but not
second degree murder, as lesser included offenses.>
[3. If all of you agree that the defendant is not guilty of first degree
murder, complete and sign the form for not guilty of first degree
murder.
4. If all of you agree on a verdict of guilty or not guilty of voluntary
or involuntary manslaughter, complete and sign the appropriate
verdict form for each charge on which you agree. You may not
find the defendant guilty of both voluntary and involuntary
manslaughter [as to any count]. Do not complete or sign any
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395
other verdict forms [for that count].
5. If you cannot reach agreement as to voluntary manslaughter or
involuntary manslaughter, inform me of your disagreement. Do
not complete or sign any verdict form for any charge on which
you cannot reach agreement.]
New January 2006; Revised April 2008, August 2009
BENCH NOTES
Instructional Duty
In all homicide cases in which the defendant is charged with first degree murder and
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, 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.
(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]; 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].)
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 to follow the procedure suggested in Stone, the court may give
this instruction or CALCRIM No. 642, Deliberations and Completion of Verdict
Forms: For Use When Defendant Is Charged With Second Degree Murder and Jury
Is Given Not Guilty Forms for Each Level of Homicide, in place of this instruction.
The court should tell the jury it may not return a guilty verdict on a lesser included
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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.)
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 various
homicide offenses. (People v. Kurtzman, supra, 46 Cal.3d at pp. 330-331.)
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].)
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
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Court (1982) 31 Cal.3d 503, 519 [183 Cal.Rptr. 647, 646 P.2d 809].
• Involuntary Manslaughter Not a Lesser Included Offense of Voluntary
Manslaughter. People v. Orr (1994) 22 Cal.App.4th 780, 784-785 [27
Cal.Rptr.2d 553].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 713.
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).
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