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 A

Judicial Council of California Criminal Jury Instructions (2020 edition)

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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
[For each count charging (murder/ manslaughter),] (Y/y)ou (have been/
will be) given verdict forms for [guilty of first degree murder][,] [guilty
of second degree murder][,] [guilty of voluntary manslaughter][,] [guilty
of involuntary manslaughter][,] and not guilty.
You may consider these different kinds of homicide in whatever order
you wish, but I can accept a verdict of guilty of a lesser crime only if all
of you have found the defendant not guilty of [all of] the greater
crime[s].
[As with all 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. You will complete and sign only one verdict form [per
count]. [Return the unused verdict forms 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 only 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 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
murder but cannot agree whether the defendant is guilty of
second degree murder, inform me that you cannot reach
agreement [on that count]. Do not complete or sign any verdict
forms [for that count].
4. <In addition to paragraphs 1-4, give the following if the jury is
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instructed on second degree murder as the only lesser included
offense.>
4. [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 not guilty verdict form.] 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 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 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, inform me that you cannot reach agreement [on
that count]. Do not complete or sign any 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 form for not guilty. Do not complete or sign any other
verdict forms [for that count].]
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 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, inform me that you cannot
reach agreement [for that count]. Do not complete or sign any
verdict forms [for that count].
CALCRIM No. 641 HOMICIDE
428
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 form for not guilty. Do not complete or sign any
other verdict forms [for that count].]
5. <If the jury is instructed on both voluntary and involuntary
manslaughter as lesser included offenses, whether the jury is
instructed on second degree murder or not, the court must give the
jury guilty and not guilty verdict forms as to first degree murder and
all lesser crimes, and instruct pursuant to CALCRIM 640.>
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. 640, Deliberations and Completion of
Verdict Forms: For Use When the Defendant Is Charged With First Degree Murder
and the Jury Is Given Not Guilty Forms for Each Level of Homicide. (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 not to follow the procedure suggested in Stone, the court
may give this instruction. If the jury later declares that it is unable to reach a verdict
on a lesser offense, then the court must provide the jury an opportunity to acquit on
the greater offense. (People v. Marshall, supra, 13 Cal.4th at p. 826; Stone v.
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Superior Court, supra, 31 Cal.3d at p. 519.) In such cases, the court must give
CALCRIM No. 640 and must provide the jury with verdict forms of guilty/not
guilty for each offense. (People v. Marshall, supra, 13 Cal.4th at p. 826; Stone v.
Superior Court, supra, 31 Cal.3d at p. 519.)
If the greatest offense charged is second degree murder, the court should give
CALCRIM 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 instead of this instruction.
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.)
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 re-try 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 re-try 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. 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].)
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
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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].
• 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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