In Re Birdwell

In People v. Winslow (1995) 40 Cal.App.4th 680, 683 [ 46 Cal.Rptr.2d 901 ], we said: “As the moving party in a criminal action, it is the People’s obligation not only to plead and prove an enhancement, but also to tender adequate instructions and verdict forms so that a lawful determination can be made and sustained on appeal. All too frequently, this responsibility is lost upon the prosecutor who concentrates on the substantive charge or charges.” Here a defective verdict form has come back to haunt the People. This opinion should serve as a reminder that extreme care should be exercised in drafting verdict forms.

In 1987, a jury convicted petitioner of murder. The jury also found there were special circumstances, i.e., the murder occurred while petitioner was engaged in the commission of the crimes of robbery and burglary. In addition, the jury found that petitioner used a dangerous weapon, a knife, in the commission of the offenses. The jury did not, however, make any finding on the verdict form with respect to the degree of murder. Petitioner was sentenced to state prison for life without the possibility of parole, one of the specified penalties for first degree…