Zwiers

We consider a constitutional challenge to California’s lesser-included offense instruction, CALJIC No. 17.10 (1984 revision) (see 4th ed. 1987 pocket pt.), commonly referred to as the “acquittal-first” instruction, which requires a jury unanimously to acquit a defendant of the greater charge before it can return a verdict on the uncharged lesser offense. The instruction provides, in pertinent part: “If the jury is not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged and it unanimously so finds, it may convict him [or her] of any lesser offense if the jury is convinced beyond a reasonable doubt that he [or she] is guilty of such lesser offense----” Prior to the 1984 revision, CALJIC No. 17.10 (see 4th ed. 1979) only required a jury to disagree as to the charged offense before convicting a defendant on the lesser offense: “If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged, he [or she] may, however, be found guilty of any lesser offense____” This instruction is commonly referred to as the “disagreement” instruction.

Appellant Daniel Ray Zwiers was convicted by a jury of first degree…