Chapter 274

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VOLUME 13 - CHAPTER 274
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274.1 Multiple Counts Or Offenses -- Miscellaneous Issues

    274.1.1 Defenses: Multiple Counts Or Charges -- General Rules
    274.1.2 Defense Theory That Series Of Wrongful Taking Acts Constitutes Only A Single Offense
    274.1.3 Aggregation Of Multiple Misdemeanor Violations
    274.1.4 Multiple Offenses: One Act One Crime Rule
    274.1.5 Multiple Offenses: Specific Offense Preempts General Offense
    274.1.6 Multiple Counts Or Offenses: Federal Circuit Model Instructions And Notes

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VOLUME 13 - CHAPTER 274

274.1.1 Defenses: Multiple Counts Or Charges -- General Rules

PRACTICE NOTE: Where a defendant is charged with more than one offense, a number of doctrines may bar conviction for certain combinations of offenses. For example:

(1) Conviction for multiple violations of the same statute arising from the same conduct is impermissible. (See Robinson, Criminal Law Defenses (West, 1984) § 68 pp. 328-29; 334-41; 494-502; see also FORECITE National™ 274.1.4 [Multiple Offenses: One Act One Crime Rule].)

(2) Conviction for an offense and a lesser included offense arising from the same conduct. (Robinson, Criminal Law Defenses (West, 1984) § 68 pp. 328-29; 334-41; 494-502; see FORECITE National™ 265.8.1 [Lesser Included Offenses: Double Jeopardy Issues -- General Principles].)

(3) Conviction for multiple offenses where one prohibits a specific instance of conduct more generally described in the other. (Robinson, Criminal Law Defenses (West, 1984) § 68 pp. 328-29; 334-41; 494-502; see FORECITE National™ 274.1.4 [Multiple Offenses: One Act One Crime Rule].)

(4) Conviction for multiple offenses where each offense is a continuing course of conduct and all offenses are part of a continuing course of uninterrupted conduct, unless the law provides that specific periods of such conduct constitute separate offenses. (Ibid.; see e.g., FORECITE National™ 274.2.9 [Multiple Kidnapping Charges Not Permissible For The Same Course Of Conduct].)

(5) Conviction for more than one inchoate offense arising from the same conduct. (Robinson, Criminal Law Defenses (West, 1984) § 68 pp. 328-29; 334-41; 494-502; see FORECITE National™ 45.5.6 [Transferred Intent: Inapplicable To Inchoate Homicides].)

(6) Conviction for both felony murder and the underlying felony. (Robinson, Criminal Law Defenses (West, 1984) § 68 pp. 328-29; 334-41; 494-502.)

(7) Inconsistent verdicts. (See FORECITE National™ 276.8.2.2 [Multiple Counts: Inconsistent Verdicts].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.10 [Multiple Counts: Propriety Of Instruction On Multiple Counts Based On Single Act Or Course Of Conduct].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 274.1.6 [ Multiple Counts Or Offenses: Federal Constitutional Model Instructions And Notes].

See also 5th Circuit Pattern Jury Instructions - Criminal 1.23.

See also 6th Circuit Pattern Jury Instructions - Criminal 2.01A.

See also 7th Circuit Federal Jury Instructions - Criminal 7.03.

See also 7th Circuit Federal Jury Instructions - Criminal 7.04.

See also 9th Circuit Model Jury Instructions - Criminal 3.12.

See also 9th Circuit Model Jury Instructions - Criminal 3.14.

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274.1.2 Defense Theory That Series Of Wrongful Taking Acts Constitutes Only A Single Offense

RATIONALE: When the defense theory is that only a single offense was committed, the jury may need to determine whether the wrongful acts were committed pursuant to a single criminal intent or plan.

POINTS AND AUTHORITIES: In People v. Sullivan (CA 1978) 80 CA3d 16, 19 [145 CR 313], the defendant was convicted of 12 counts of grand theft arising from the disposition of proceeds from the sale of a home. Defendant maintained that each offense was committed against the same victims pursuant to one criminal intent or one plan and, therefore, she could be properly convicted of only violation. To support this theory, defendant requested that instruction set forth below. The trial court denied defendant's request. She appealed, contending reversal was required due to instructional error. The Court of Appeal agreed, referring to People v. Bailey (CA 1961) 55 C2d 514, 518-20 [11 CR 543].

In Bailey, the Supreme Court held that whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case. A defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows the offenses were separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan. The evidence in Sullivan did not compel the conclusion that only one offense was involved in the takings alleged in the information. However, substantial evidence did exist to this effect. Therefore, the trial court erred in failing to give the instruction requested by the defendant. That instruction would have permitted the jury to pass upon the question of whether the acts were committed pursuant to one general intent or impulse and one plan.

The Sullivan/Bailey rule applies in theft and embezzlement cases. (Bailey, 55 C2d at 519; see also In re David D. (CA 1997) 52 CA4th 304, 307 [69 CR2d 552] [Bailey doctrine should not be extended to allow a prosecutor to aggregate numerous misdemeanor graffiti offenses committed against multiple victims into one felony charge].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 12.3].

NOTES: There is a split in authority as to whether a nonviolent taking from multiple victims pursuant to an indivisible transaction is a single offense or multiple offenses. (See FORECITE National™ 274.3.1 [Multiple Takings As Constituting Single Or Multiple Theft Or Robbery Offenses].)

If force or fear is applied to two victims in joint possession of property, two convictions of robbery are proper. (People v. Ramos (CA 1982) 30 C3d 553, 589 [180 CR 266]; People v. Clay (CA 1984) 153 CA3d 433, 459 [200 CR 269].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.10 [Multiple Counts: Propriety Of Instruction On Multiple Counts Based On Single Act Or Course Of Conduct].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 274.1.6 [ Multiple Counts Or Offenses: Federal Constitutional Model Instructions And Notes].

See also 5th Circuit Pattern Jury Instructions - Criminal 1.23.

See also 6th Circuit Pattern Jury Instructions - Criminal 2.01A.

See also 7th Circuit Federal Jury Instructions - Criminal 7.03.

See also 7th Circuit Federal Jury Instructions - Criminal 7.04.

See also 9th Circuit Model Jury Instructions - Criminal 3.12.

See also 9th Circuit Model Jury Instructions - Criminal 3.14.

SAMPLE INSTRUCTION:

    A series of wrongful acts may constitute a single offense.

    When those acts are committed pursuant to one general intent or impulse and one plan, the acts constitute a single offense.

    If you find the acts of the defendant to be wrongful and if you find that those acts were committed pursuant to one general intent or impulse and one plan, then you may find that the acts constitute a single offense.

[Source: People v. Sullivan (CA 1978) 80 CA3d 16, 19 [145 CR 313].]

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274.1.3 Aggregation Of Multiple Misdemeanor Violations

PRACTICE NOTE: People v. Bailey (CA 1961) 55 C2d 514, 546 [11 CR 543] allowed a felony grand theft conviction based on several instances of misdemeanor petty theft committed by the defendant against the same victim. However, since Bailey, the courts have not extended this doctrine beyond theft prosecutions. (See People v. Drake (CA 1996) 42 CA4th 592, 597 [49 CR2d 765] [declining to extend Bailey to forgery prosecution]; see also People v. Woods (CA 1986) 177 CA3d 327, 331-32 [222 CR 868].) Accordingly, the Bailey doctrine should not be available to aggregate numerous misdemeanor graffiti offenses into a single felony charge. (See In re David D. (CA 1997) 52 CA4th 304, 308 [69 CR2d 552].)