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 VOLUME 8 - CHAPTER 116
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Chapter 116: Applicability Of Lesser Included Offense Principles To Sentencing Enhancements

    116.1 Lesser Sentencing Enhancement As Defense Theory To Charged Greater Enhancement Allegation
    116.2 Application Of Reasonable Doubt Rule To Choice Between Sentence Enhancements
    116.3 Choice Between Firearm Use And Arming Allegations

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 VOLUME 8 - CHAPTER 116

RATIONALE: Just as the charged offense may contain lesser included offenses, so too may an enhancement allegation contain lesser enhancement allegations. Hence, lesser included offenses principles may permit instruction on the lesser enhancement as a defense theory.

POINTS & AUTHORITIES: In jurisdictions which submit sentence enhancements to the jury, such as use of a firearm, lesser included principles may come into play to permit instruction on a lesser included sentencing enhancement. (See e.g., People v. Turner (CA 1983) 145 CA3d 658, 683-84 [193 CR 614] [arming is lesser of firearm use enhancement].)

    For example, in some cases, the evidence may only weakly demonstrate "use" of a weapon. In such a case, the jury should be instructed on the lesser included enhancement of being armed with a weapon. (See People v. Allen (CA 1985) 165 CA3d 616, 627 [211 CR 837]; see also People v. Schaefer (CA 1993) 18 CA4th 950, 951 [22 CR2d 536].)

    In People v. Majors (CA 1998) 18 C4th 385, 410 [75 CR2d 684] the California Supreme Court acknowledged the Turner rule that permits instruction on "lesser included enhancements," but held that such an instruction must be requested. The court reached this conclusion on the basis that the sua sponte obligation to instruct on lesser included offenses applies in situations where the jury is forced into an all-or-nothing choice between guilt and innocence. Such a rationale does not apply to enhancements.

   See also FORECITE National™ 265.4.3 [Choice Between Firearm Use And Lesser Included Arming Allegation].

    See also FORECITE National™ 275.1.7 [Instruction On Lesser Included Sentencing Enhancements].

    In People v. Majors (CA 1998) 18 C4th 385, 410 [75 CR2d 684] the California Supreme Court acknowledged the Turner rule that permits instruction on "lesser included enhancements," but held that such an instruction must be requested. The court reached this conclusion on the basis that the sua sponte obligation to instruct on lesser included offenses applies in situations where the jury is forced into an all-or-nothing choice between guilt and innocence. Such a rationale does not apply to enhancements.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.8; 8.4].

    If you are not satisfied beyond a reasonable doubt of the truth of an allegation charged in connection with a count, you may nevertheless find a lesser allegation true, if you are convinced beyond a reasonable doubt of the truth of that lesser allegation.

    [The allegation of __________ is lesser to the allegation of __________, charged in connection with Count _____.]

    [The allegation of __________ is lesser to the allegation of __________, charged in connection with Count _____.]

    Thus you are to determine first* whether the defendant is guilty of the offense[s] charged in Count _____ [or of any lesser offense on which you have been instructed]. If you find the defendant guilty of the offense charged in Count _____ [or of a lesser offense], you are then to proceed to determine the additional allegation[s] charged in connection with that count.

    You are to decide whether the charged allegation or any lesser allegations have been proven. In doing so, you have the discretion to choose the order in which you evaluation each allegation and consider the evidence pertaining to it. You may find it productive to consider and reach a tentative conclusion on all charged allegations and lesser allegations before reaching any final verdict[s]. [However, the court cannot accept a true verdict on a lesser allegation unless you have unanimously found the charged allegation not true.]*

* But see FORECITE National™ 275.4.1 [Constitutional Challenge To Acquittal-First Rule].

[Source: FORECITE National™.]

    [If you are convinced beyond a reasonable doubt that the defendant was armed with a firearm in the commission of the offense[s] charged in Count[s] _____ but you have a reasonable doubt whether the defendant personally used a firearm within the meaning of these instructions] [If you are convinced beyond a reasonable doubt that one of the principals in the commission of the offense[s] charged in Count _____ was armed with or used a firearm but you have a reasonable doubt whether the defendant [himself] [herself] personally used a firearm], you must resolve that doubt in favor of a verdict on the allegation of arming with a firearm, and find the allegation of personal use of a firearm not true.

[Source: FORECITE National™.]

    You are required to resolve in favor of the lesser allegation any reasonable doubt which you have in the choice between a charged allegation and a lesser allegation. Thus if you are convinced beyond a reasonable doubt that either a charged allegation or a lesser allegation is true, but have a reasonable doubt as to which of those allegations is applicable, you must give the defendant the benefit of that doubt and find the lesser allegation true and the charged allegation not true.

[Source: FORECITE National™.]

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 VOLUME 8 - CHAPTER 116

RATIONALE: Without an explanatory instruction the jurors may not understand that the presumption of innocence requires a verdict as to the lesser sentencing allegation if they have a reasonable doubt whether the defendant is guilty of the greater or lesser allegation.

POINTS AND AUTHORITIES: United States Supreme Court jurisprudence may require the prosecution to prove a sentencing enhancement beyond a reasonable doubt. (See FORECITE National™ 115.2 [Sentence Enhancements: Applicability Of Federal Constitution].)

    In such a case the same rationale that justifies an instruction relating the burden of proof beyond a reasonable doubt to a greater and lesser offense (see FORECITE National™ 265.4.2 [Reasonable Doubt As To Greater Charge Must Be Resolved In Favor Of Lesser]) should also justify such an instruction as to a greater and lesser sentence enhancement.

    If you are satisfied beyond a reasonable doubt that a special allegation should be found true, but you have a reasonable doubt whether the allegation proven was _______________ [insert greater allegation] or ______________________ [insert lesser allegation] you must give the defendant the benefit of the doubt and return a verdict of true as to the _____________________ [insert lesser allegation] allegation and not true as to the ____________________ [insert greater allegation] allegation.

[Source: FORECITE National™.]

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 VOLUME 8 - CHAPTER 116

    116.3    Choice Between Firearm Use And Arming Allegations

    See FORECITE National™ 116.1 [Lesser Sentencing Enhancement As Defense Theory To Charged Greater Enhancement Allegation].