Section 3519 | CALCRIM (Jury Instructions)

If the case involves separately charged greater and lesser offenses, the court should
give CALCRIM No. 3519. Because the law is unclear in this area, the court must
decide whether to give this instruction if the defendant is charged with specific
sexual offenses and, in the alternative, with continuous sexual abuse under Penal
Code section 288.5. If the court decides not to so instruct, and the jury convicts the
defendant of both continuous sexual abuse and one or more specific sexual offenses
that occurred during the same period, the court must then decide which conviction
to dismiss.
AUTHORITY
•
Prohibition Against Dual Conviction. People v. Ortega (1998) 19 Cal.4th 686,
692 [80 Cal.Rptr.2d 489, 968 P.2d 48]; People v. Sanchez (2001) 24 Cal.4th 983,
988 [103 Cal.Rptr.2d 698, 16 P.3d 118]; People v. Allen (1999) 21 Cal.4th 846,
851 [89 Cal.Rptr.2d 279, 984 P.2d 486]; People v. Jaramillo (1976) 16 Cal.3d
752, 757 [129 Cal.Rptr. 306, 548 P.2d 706].
•
Instructional Requirements. See People v. Allen (1999) 21 Cal.4th 846, 851 [89
Cal.Rptr.2d 279, 984 P.2d 486]; People v. Jaramillo (1976) 16 Cal.3d 752, 757
[129 Cal.Rptr. 306, 548 P.2d 706].
•
Conviction of Receiving Stolen Property Not Possible if Defendant Convicted of
Theft. People v. Ceja (2010) 49 Cal.4th 1, 3–4 [108 Cal.Rptr.3d 568, 229 P.3d
995].
RELATED ISSUES
Dual Conviction May Not Be Based on Necessarily Included Offenses
“[T]his court has long held that multiple convictions may not be based on
necessarily included offenses. The test in this state of a necessarily included offense
is simply that where an offense cannot be committed without necessarily committing
another offense, the latter is a necessarily included offense.” (People v. Ortega
(1998) 19 Cal.4th 686, 692 [80 Cal.Rptr.2d 489, 968 P.2d 48] [emphasis in original,
citations and internal quotation marks omitted]; see also People v. Montoya (2004)
33 Cal.4th 1031, 1034 [16 Cal.Rptr.3d 902, 94 P.3d 1098].) “In deciding whether an
offense is necessarily included in another, we apply the elements test, asking
whether all the legal ingredients of the corpus delicti of the lesser offense are
included in the elements of the greater offense.” (People v. Montoya, supra, 33
Cal.4th at p. 1034 [internal quotation marks and citation omitted].)
Dual Conviction—Examples of Offense Where Prohibited or Permitted
The courts have held that dual conviction is prohibited for the following offenses:
•
Robbery and theft. People v. Ortega (1998) 19 Cal.4th 686, 699 [80 Cal.Rptr.2d
489, 968 P.2d 48].
•
Robbery and receiving stolen property. People v. Stephens (1990) 218
Cal.App.3d 575, 586–587 [267 Cal.Rptr. 66].
•
Theft and receiving stolen property. People v. Jaramillo (1976) 16 Cal.3d 752,
757 [129 Cal.Rptr. 306, 548 P.2d 706].
CALCRIM No. 3516
POST-TRIAL: CONCLUDING
1080

exists even when as a matter of trial tactics a defendant not only fails to request the
instruction but expressly objects to its being given. [Citations.] Just as the People
have no