Gutierrez

This appeal requires consideration of the proper procedure to be utilized by a jury, and accordingly the instructions which should be given a jury, when it is presented with alternative primary criminal offenses and the possibility of a lesser included offense as to one of the alternative primary offenses. We conclude that the jury should be instructed that it need reach the issue of the lesser included offense of one of the alternative primary offenses only if it concludes that the defendant is not guilty of both alternative primary offenses.

The defendant in this case was arrested after a display of erratic driving. A blood test indicated intoxication. The vehicle being driven was shown to have been stolen from an auto agency. The defendant did not testify at the trial. Rather obviously, then, the jury was presented a case in which the defendant was in possession of and driving a stolen vehicle. The specific crime of which he might be found guilty would depend upon the jury’s *4 resolution of circumstantial evidence pertaining to the facts of the taking of the vehicle and the defendant’s intent related thereto.

In order to sustain the receiving stolen property…