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self-study / Criminal Law

Instructing on lesser crimes and unanimity

Hall henry j

Clara Shortridge Foltz Criminal Justice Center

Henry J. Hall

Judge, Los Angeles County Superior Court

Felony Trials

Loyola Law School, 1976

The objective of this article and self-study test is to review special issues that often arise concerning the application of jury instructions in criminal cases. Readers will learn about the general duty to instruct on lesser included offenses, whether instructions are needed on included offenses based on defenses, and the tests used to determine if an offense is a lesser of a greater crime. Readers will also learn about the duty to provide a unanimity instruction, and on major exceptions to the duty, including the lack of duty to instruct on theories to a crime, and special issues that arise in child molestation and vehicular manslaughter cases.

Lesser Included Offenses

Instructions on lesser included offenses are required where there is "substantial enough evidence to warrant consideration" that defendant is guilty of a lesser offense. People v. Flannel, 25 Cal. 3d 668 (1979). A court cannot instruct on a lesser included offense if the evidence supports conviction of only the greater. People Hawkins, 10 Cal. 4th 920 (1995); People v. Stewart, 77 Cal. App. 4th 785 (2000).

A court must instruct sua sponte on all lesser included offenses supported by the evidence. People v. Licas, 41 Cal. 4th 362 (2007); People v. Breverman, 19 Cal. 4th 142 (1988). The court must instruct on every "supportable theory" suggested by the evidence. People v. Barton, 12 Cal. 4th 186 (1995).

The court must instruct on lesser included offenses even if either or both parties object, going for an "all-or-nothing" verdict. People v. Prince, 40 Cal. 4th 1179 (2007); People v. Beames, 40 Cal. 4th 907 (2007). The rationale being, "the trial court's action will avoid an unwarranted all-or-nothing choice for the jury and will ensure that the verdict is no harsher or more lenient than the evidence merits." People v. Wickersham, 32 Cal. 3d 307 (1982). Moreover, "[j]ust 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. Our courts are not gambling halls but forums for the discovery of truth." People v. St.Martin, 1 Cal. 3d 524 (1970). This rule "ensures that the jury will consider the full range of possible verdicts - not limited by the strategy, ignorance, or mistakes of the parties." People v. Wickersham, 32 Cal. 3d 307 (1982).

It can be invited error, with reversal on appeal being unwarranted, if the court erroneously does not instruct on a lesser included offense based on the defense for tactical reasons making a specific objection to the instruction being provided. People v. Beames, 40 Cal. 4th 907 (2007); People v. Horning, 34 Cal. 4th 871 (2004). The court must instruct on a lesser included offense even when the instruction is inconsistent with the theory of the defense. People v. Barton, 12 Cal. 4th 186 (1995).

There is no requirement that a court instruct on lesser related offenses, but it is not error to do so if both sides agree. People v. Birks, 19 Cal. 4th 108 (1998). However, a court is not required to instruct on lesser related offenses, even if the parties agree. People v. Hall, 200 Cal. App. 4th 778 (2011).

Included Offenses, Defenses

There are gray areas between "defenses" and "lesser." There are different general rules: As discussed above, the court must instruct on supported lesser included offenses, even if inconsistent with the defense theory; but the court should not instruct on defenses that are inconsistent with the proffered defense (see People v. Abilez, 41 Cal. 4th 472 (2007)).

The court must instruct sua sponte on lessers when imperfect self-defense may be present. Under Barton, the imperfect self-defense doctrine negates the element of malice aforethought and is not a defense. (Note: Barton overruled People v. Wickersham, 32 Cal. 3d 30 (1982), on this point.) The obligation to instruct sua sponte includes "giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present." People v. Sedeno, 10 Cal. 3d 703 (1974). With regard to voluntary intoxication, the evidence must establish that intoxication affected the defendant's "actual formation" of specific intent. People v. Williams, 16 Cal. 4th 635 (1997). Also, pursuant to Breverman, the court must instruct sua sponte on voluntary manslaughter where there is evidence of sudden quarrel or heat of passion sufficient to establish the crime because it negates the malice aforethought element of murder. Note, however, that neither manslaughter instruction should be given where the decedent is a fetus; cannot have manslaughter of a fetus. Pen. Code Section 192; People v. Flores, 3 Cal. App. 4th 200 (1992).

There is no sua sponte duty to instruct on lesser included offenses barred by the statute of limitations. People v. Whitfield, 19 Cal. App. 4th 1652 (1993). The court can give an instruction on a time-barred lesser at the defendant's request if he waives the statute of limitations, so long as the greater crime is not time-barred. People v. Williams, 21 Cal. 4th 335 (1999); People v. Overman, 126 Cal. App. 4th 1344 (2005). Defendant waives the right to appeal a conviction on a time-barred lesser if he or she requests or acquiesces to the instruction. People v. Stanfill, 76 Cal. App. 4th 1137, 1150 (1999). However, there is no forfeiture of the benefit of a statute of limitations if the defendant neither requests nor acquiesces to the giving of the instruction. People v. Beasley, 105 Cal. App. 4th 1078 (2003).


There are two tests for determining whether an offense is a lesser included offense. Under the statutory or "legal elements" test, "[i]f the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." People v. Reed, 38 Cal. 4th 1224 (2006). The test is one of law and the elements must be examined in the abstract. People v. Cheaves, 113 Cal. App. 4th 445 (2003). Under the "accusatory pleading" test, according to Reed, "if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." In this situation, the language of the accusatory pleading adequately warns the defendant that the people will try to prove the elements of the lesser offense. See generally People v. Lohbauer, 29 Cal. 3d 364 (1981).


The basic requirement is that the jury must agree unanimously on the criminal act committed by the defendant before it can convict. People v. Sutherland, 17 Cal. App. 4th 602 (1993). This is called the "Sullivan rule." People v. Sullivan, 173 N.Y. 122 (1903). If there is more than one act on which the jury could reasonably convict the defendant, the jury must be given a unanimity instruction sua sponte. The minority view is that a unanimity instruction need not be given unless there is evidence on which reasonable jurors could disagree as to the act that the defendant committed. People v. Schultz, 192 Cal. App. 3d 535 (1987).


Recognized exceptions to the requirement to provide a unanimity instruction include when the crime is a "continuous course of conduct." People v. Maury, 30 Cal. 4th 342 (2003); People v. Ordonez, 226 Cal. App. 3d 1207 (1991). Here the statute covers a continuous course of conduct, meaning a series of acts committed over a period of time. People v. Avina, 14 Cal. App. 4th 1303 (1993). With conspiracy cases, there is no requirement that jury be unanimous on the overt act. People v. Russo, 25 Cal. 4th 1124 (2001). Pursuant to Russo, the instruction may be required if the case raises statute of limitations issues or if there is a withdrawal issue linked to a particular date.

There is also no duty to give unanimity instruction when there are different legal theories of guilt. People v. Forbes, 175 Cal. App. 3d 807 (1985). According to Russo, "In a criminal case, a jury verdict must be unanimous. ... Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. ... [¶] ... [¶] On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (Internal citations omitted.) There is no constitutional requirement of unanimity in such cases. Schad v. Arizona, 501 U.S. 624 (1991). When the prosecution elects one act, the prosecution must inform the jury that it is relying on one discrete act. People v. Melhado, 60 Cal. App. 4th 1529 (1998).

There are several examples of the lack of duty to instruct on theories. The jury need not be unanimous on whether the defendant acted as the actual perpetrator or as an aider and abettor. People v. Majors, 18 Cal. 4th 385 (1998); People v. Hernandez, 34 Cal. App. 4th 73 (1995). Under the natural and probable consequences doctrine, each juror must be convinced beyond a reasonable doubt that the defendant aided and abetted the commission of a criminal act, and that the offense actually committed was a natural and probable consequence of that act. But the jury need not unanimously agree on the particular target crime the defendant aided and abetted. People v. Prettyman, 14 Cal. 4th 248 (1996). A defendant may be found guilty of burglary when he or she enters a building with the intent to commit a felony. However, a jury does not have to unanimously decide which felony the defendant intended to commit, so long as each of the jurors finds beyond a reasonable doubt that the defendant intended to commit some felony. People v. Hughes, 27 Cal. 4th 287 (2002).

Special Cases

In child molestation cases, "generic" testimony may be enough to convict. Children have a difficult time "differentiating" between separate acts which occur over a period of time. People v. Jones, 51 Cal. 3d 294 (1990). The "true issue" is normally the credibility of the complaining witness, and if the jury accepts the testimony of the complaining witness, the unanimity requirement will be satisfied because the jury will believe that all of the acts were committed. People v. Moore, 211 Cal. App. 3d 1400 (1989). If there is no reasonable chance that the jury will disagree on particular acts and the only question is whether the defendant committed all of them, the court should give CALCRIM 3501 (unanimity when generic testimony of the offense is presented). If the evidence suggests that the jurors might disagree about particular act, the court should also give a unanimity instruction. People v. Jones, 51 Cal. 3d 294 (1990). For example, a unanimity instruction should be given when the defendant raises separate defenses to each alleged event. People v. Gordon, 165 Cal. App. 3d 839 (1985).

In vehicular manslaughter cases, the problem is that a number of acts can constitute the required "act forbidden by law." See Pen. Code Section 192(c)(3). There are three approaches in these cases: (1) unanimity instruction required (People v. Gary, 189 Cal. App. 3d 1212 (1987)); (2) unanimity instruction not required because the different acts are different legal theories to support a required element (People v. Leffel, 203 Cal. App. 3d 575 (1988); People v. Mitchell, 188 Cal. App. 3d 216 (1986)); and (3) unanimity instruction not required because bad driving is a continuous course of conduct (People v. Durkin, 205 Cal. App. 3d Supp 9 (1988)).


Ben Armistead

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