California Criminal Jury Instructions (CALCRIM) (2017)

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

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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
[For each count charging second degree murder,] (Y/y)ou (have been/
will be) given verdict forms for guilty and not guilty of 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 [voluntary]
[or] [involuntary] manslaughter only if all of you have found the
defendant not guilty of 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 second 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
second 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 only one form of manslaughter (voluntary or
involuntary) as a lesser included offense.>
[3. If all of you agree that the defendant is not guilty of second
degree murder but also agree that the defendant is guilty of
(voluntary/involuntary) manslaughter, complete and sign the
form for 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].
4. If all of you agree that the defendant is not guilty of second
degree murder but cannot agree whether the defendant is guilty
of (voluntary/involuntary) manslaughter, complete and sign the
form for 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].
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5. If all of you agree that the defendant is not guilty of second
degree murder and not guilty of (voluntary/involuntary)
manslaughter, complete and sign the verdict forms for not guilty
of both.]
5. <In addition to paragraphs 1–2, give the following if the jury is
instructed on both voluntary and involuntary manslaughter as lesser
included offenses.>
[3. If all of you agree that the defendant is not guilty of second
degree murder, complete and sign the form for not guilty of
second degree murder.
4. If all of you agree on a verdict of guilty or not guilty of
voluntary manslaughter or involuntary manslaughter, complete
and sign the appropriate verdict form for each charge on which
you agree. Do not complete or sign any other verdict forms [for
that count]. You may not find the defendant guilty of both
voluntary and involuntary manslaughter [as to any 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 August 2009
BENCH NOTES
Instructional Duty
In all homicide cases in which second degree murder is the greatest offense
charged and one or more lesser offense is submitted to the jury, the court has a sua
sponte duty to give this 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];
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].)
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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. 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, in place 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 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.)
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)
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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].
• 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 (3d ed. 2000) Criminal Trial, § 631.
4Millman, 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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