How have the courts interpreted the acquittal-first rule in recording a verdict in a second degree murder case?

We do note in passing that the procedure employed here in recording the verdict was erroneous. "[T]he trial court commits error if it receives and records a verdict of guilty on the lesser included offense without ever having given the jury an acquittal-first instruction." (People v. Fields (1996) 13 Cal.4th 289, 310.) "[W]hen the jury returns a verdict on the lesser included offense, it must also render a corresponding verdict of acquittal on the greater offense. If a verdict of guilty on the lesser offense is recorded and the jury discharged without having rendered any verdict on the greater offense, a retrial on the greater offense is barred under [Penal Code] section 1023, regardless of whether the jury expressly deadlocked on that charge." (Ibid.) Moreover, "[w]hen the jury is instructed on the acquittal-first rule and hangs on the more serious offense, the prosecution is put to a choice: It may either move for a mistrial and set the entire matter for a retrial [citations], or, if it wishes to accept a verdict on the lesser charge and forgo a chance to convict on the greater, the prosecution may ask the court to dismiss the greater charge in the interest of justice [citation]. [Citation.]" (People v. Anderson (2009) 47 Cal.4th 92, 114.) "[T]he whole point of the . . . rule is to provide a procedure whereby the jury's intent is clear, and legitimate interests of both the defendant and the People are honored." (Id. at pp. 114-115.) In this case, it does appear that an acquittal first instruction was not given. Although the trial court erred by not instructing with CALCRIM No. 640, concerning completing verdict forms when more than one degree of murder is possible, the error cannot possibly have had any effect on the jury's understanding regarding the definition of second degree murder.

Appellant contends that the cumulative impact of all of the above errors deprived him of a fair trial. We have either rejected appellant's claims of error and/or found that any errors were not prejudicial. Viewed cumulatively, we find that any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)

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The judgment is affirmed.

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ELIA, Acting P. J.