*1 Dist., Div. Sept. B040245.Second Seven. [No. 1989.] GRAY, Petitioner, LEWIS MARIO COUNTY,
THE SUPERIOR COURT OF LOS ANGELES Respondent; PEOPLE, Party
THE Real Interest.
Counsel Defender, Sarnoff, Littlefield, Wilbur F. Public Laurence M. Charles Hall, Gessler, MacBride, J. Henry Deputy Thomas H. Public Defenders, for Petitioner. *3 appearance
No for Respondent. Reiner, Attorney, Ira J. and Maurice H. District Donald Kaplan Attorneys, Party District for Real in Interest. Oppenheim, Deputy Opinion that, (Fred), J.
WOODS find as in v. Bonillas 48 Cal.3d People (1989) We 895, verdict, 757 111 P.2d initial Cal.Rptr. 844], [257 having murder not was specified, lawfully com expressly by a pleted admonished and properly promptly reconvened rendered a verdict of supplemental first murder. Therefore the peti for tion a writ of mandate is denied. peremptory Background and
Factual Procedural Code, 187, Petitioner was with the of Ruby (Pen. murder Reed § (a),1 subd. aggravated four special allegations circumstance (burglary, attempted robbery, rape, (§261, and with her sodomy), subd. rape (2)), 286, sodomy (§ (c)), robbery 211), subd. (§ burglary (§ residential 459). He was additionally charged with six other burglaries. residential 22, 1989, trial,
On February after several weeks of returned verdicts on all the guilty charges and found the circumstance allega- true. tions The verdict on the charge found “guilty of petitioner 187, violation Penal (a), felony, Code section subdivision a Murder, alleged I of count the Information.” The did not specify recorded, the verdicts polled, admonished later, 24, days and instructed to two on February return to commence the penalty phase. day, February
The next a counsel during conference with and peti- tioner, the court concern over the omission of on expressed
1 noted, statutory Unless all otherwise references are to the Penal Code. 1151,2 v. Marks (1988) section Citing People
of murder verdict. 260], 756 P.2d McDonald Cal.Rptr. and other 46 A.L.R.4th Cal.3d 351 1011] as a be declared second moved that the murder petitioner authorities motion, it would reinstruct indicating The court denied the matter law. verdict forms. and submit to them modified They jury. and reinstructed the On the court reconvened Twenty-three verdict forms and asked to deliberate. were revised provided first murder verdict. minutes later returned stayed of mandate. We Petitioner filed with this court a writ petition 3, 1989, writ of mandate peremptory his trial and on issued penalty April *4 degree the trial court to enter a of conviction of second ordering judgment Court real granted party murder. Thereafter the California 8, 1989, for and on June transferred (RPI) interest’s review petition 1989, 3, matter to this court with directions to vacate our April opinion Bonillas, 48 757. the matter in of Cal.3d light People supra, reconsider directions, 21, 1989, Pursuant to those on June we vacated our April 1989, opinion. briefs and oral
Having argu- had the benefit of the parties’ supplemental ment, now in the v. Bonillas. petition light People we reconsider
Discussion Since the did find the of the murder in its expressly degree Bonillas, verdict, is, 24 February as it was whether question February 24 verdict was lawful.
The enunciated in v. Hendricks answer turns on principle with quoted 1350] “ ‘ in Bonillas: “. . . a verdict has not been rendered approval complete if (Powell, Ham), Grider), irregular (Chong, or is juris the verdict otherwise if diction to reconvene the on whether the has the court’s jury depends left has, hasn’t, Grider); control. If it is if it jurisdiction (Chong, there no provides: attempt The section “Whenever a defendant is convicted of a crime or to com waived, jury, distinguished degrees, if trial mit crime which is into or the court is degree attempted guilty. Upon crime he the failure must find the of the crime or of which is determine, attempted the court to so the crime crime of or or guilty, degree.” is the defendant shall be deemed to be of the lesser ’ ” Bonillas, (Powell, Ham).” be reconvened jury may (People p. 771.) (Original italics.) February
1. Was the 22 verdict or complete incomplete? verdict, February having of murder not expressly defect, It was this identical omission specified, incomplete irregular.3 verdict as degree, Chong “irregu- caused Bonillas characterize the Hughes lar” fn. and the and Bonillas verdicts as (See ante) “incomplete.” fn. (See ante.)
Petitioner, however, that the 22 verdict was com argues Bonillas, since, unlike plete instant was never instructed that it must return a verdict of the offense. specifying Petitioner relies upon the in Bonillas: “Because the instructions following language required the jury to of the murder and the verdict returned failed so, to do the verdict was under the law instructions.” p. 769.) Not is this relied sentence from Bonillas upon authority not quite petitioner’s assertion but in context is even less so. The full Bonillas para- instance, reads: “In the graph first if was instructed that it found defendant of murder it was to find the murder. *5 However, for some reason it unknown was not furnished a verdict form which to specify degree, and the verdict it guilty January did return on 27 specified only that defendant guilty of murder ‘as in the information.’ Because the instructions jury to the de- specify so, gree murder and the verdict returned failed to do the verdict was incomplete under the law and instructions.” Cal.3d at (48 769.)4 p. Bonillas,
Thus, to according jury was instructed it was to “find” state, and “to but Bonillas specify degree” contrary does not to assertion, petitioner’s that the jury was instructed to in its specify degree instructions, verdict. The footnoted language, referring to related also fails to state that the was instructed to specify degree in its verdict.
“The was instructed it should return a finding on the burglary-mur- der special circumstance if it found defendant of guilty first “incomplete” “irregular” inconsistently. 3Bonillas uses the terms E.g., and the murder ver People Chong (1892) dict in v. Lee specify Yune Cal. P. which failed to 776] Bonillas, “irregular” (People 771) is characterized as at in but the murder verdicts Bonillas, McDonald, Hughes Cal.App.2d P.2d 679] Bonillas, similarly specify degree “incomplete.” failed to are characterized as su 769, 774, pra, pp. 775-776.) only paraphrases quotes 4Bonillas not the trial court’s instructions. murder, and, course, burglary- verdict true as to the it did return a of 769, fn. (48 circumstance.” special case, not instruct judge explicitly
In the instant trial did although first if it murder it should petitioner guilty that found “Second, verdict, must you apply follows: it did instruct them as its way in this I facts determine them. And you you state to to the law your to include you are instructed your any finding arrive at verdict and (Italics verdict.” added.) of murder the first you degree,
“If in this case the defendant find circum- you following if one or more of the must then determine robbery, sodomy.” (Italics Burglary, rape are true or not true: stances added.) in a verdict.” as to count must be stated finding separate
“Your each (Italics added.) linked, informed the that their determina-
When these instructions first murder was a and that tion defendant was course, Of as in finding must be stated in a verdict. (separate) degree” provided form to the neither stated “first nor provided carry box to check or other cue out court’s any enabling fn. satisfy (§ 1157.) (See ante.) law’s instructions and requirements. Thus, instructions are com- contrary argument, instant petitioner’s parable those Bonillas. even if not to Bonillas the comparable
But the instant instructions were Bonillas irregular. although have been For verdict would still *6 instructions”, . that verdict under . . it is “incomplete *7 “the notion that a verdict is or ‘that the ‘complete’ functions a cease conviction, provides It pertinent part: in appears “When there is a verdict of in which it to law, may Court that the have explain mistaken the the Court the reason for that verdict, if, opinion reconsideration, and direct they to reconsider their and after the verdict, entered;...” return the same it must be course, verdict, construed, must as to the recorded be their assent
with ” added by discharge’ (Ibid.) (Italics to a assent applying final followed Bonillas.)
Thus, in instructions return- if the followed court’s even instant Hughes jury as the (no degree specified), of murder verdict their ing (as trial Bonillas certainly followed the instructions of its judge, Hughes incomplete. says verdict) 2. admonition. Sufficiency court’s indicates, to re being “jurisdiction Bonillas the verdict incomplete,
As has left the court’s control.” jury depends convene the on whether control 771.) assessing in retention of court is (48 p. Cal. 3d One factor court, receiving In Bonillas “the after jury. the court’s admonition to the verdicts, among not to discuss the case them jurors these admonished the anyone, to refrain from about case reading anything selves or with (Bonillas, 768.) in the Cal.3d at newspapers.” in the claims the admonition instant case was deficient Petitioner that they Bonillas not instructed that “specifically because unlike were Cal.3d at jurors (48 still the case.” [were] court jurors The trial admonished follows: “The Court: Now some are under still the not to discuss this case because you obligation may that also you already things that have heard will be be things not you’re ... So penalty again discussed at admonished phase. else into anybody go the case with each other or until now we the— discuss you All that penalty phase. during we into the are not discuss case go before, in for an you entirely had discussed it but now we are though even are anymore you different So don’t discuss until instructed purpose. again of it. me to back and deliberate on that Counsel wish instruct go aspect than more I have done? anything particular Monaghan No, your honor. prosecutor]: [the “Mr. No, your honor. [defense counsel]:
“Mr. MacBride you. All Thank Friday Then at 9:15. right. morning “The Court: day after tomorrow.” jurors unmistakable from admonition that the were told
It is
the court’s
still
case.” Unlike
“they
have
were
and would
understood
admonition,
court’s
not free to
jury,
jury,
this
under the
discharged
*8
any
obliga-
“free from
official
jurors”
off their characters as
nor
“[throw]
Bonillas,
Petitioner makes a related and jury job regarding guilt phase instant was told it had its completed that its duties were jury contrast to Bonillas “where it was made clear to the instant one on juries, not The distinction eludes us. Both completed.” to understand that the February January and Bonillas on were made over, commence, they were guilt phase phase was would soon penalty Any syntactical excused not in com- temporarily discharged. discrepancy municating this identical information is without significance.
3. Reconvening the jury. distinction; Bonillas,
Petitioner “In following draws reconvened for the the verdict” specially purpose ‘correcting’ while “[i]n bench, the case at was asked to its verdict at guilt phase ‘complete’ the commencement of the penalty phase.”
Whether or not the trial court retained to have the jurisdiction rectify its omission of from a of murder not verdict does depend upon which word is used: “correct” or “complete.” purpose was the same: to correct a deficient verdict adding specification and thus to make it complete.
Similarly, any distinction between the of the Bonillas reassembling “even before penalty were scheduled to commence” phase proceedings Cal.3d at p. 776) reconvening instant jury day on the penalty phase proceedings were scheduled to com- mence, is significance. without court,
It was mere happenstance the Bonillas trial after receiving January verdict on failed to a precise schedule date for the date, commencement of the penalty phase. Having failed to schedule such a then, on January jurors reassembled the to correct and their complete 6Petitioner does not contend that the court’s deficient because it admonition was omitted instructing reading anything newspapers.” “to refrain from about the case in the caution, (Bonillas, supra, although prudent, This is not mandated day, having 1122. presence section Moreover the was outside the court’s one February By on excused to return 24. contrast the Bonillas was ex January January Additionally, spe cused until and not reconvened 31. the trial court cifically asked counsel if and defense said wished additional admonitions counsel admonition, circumstances, no. We are satisfied the court’s under these sufficient. *9 554 January
verdict. But the nature and substance of the 31 Bonillas proceed- were identical to those at bench on 24. ings February What was critical was by the absence of “tainting, receipt penalty (48 evidence.” phase at p.
4. Correction and the verdict. completion of
On the court instructed the “The follows: you forms originally given count should have murder concerning specified in the first instead of murder. simply Revised forms of verdicts as ft[] you to count will now be in given murder the first specifying degree, [to] room, deliberate, Please return your to the and render verdict as to [fl] count 1 using revised verdict forms.”
Petitioner contends that so the court in instructing This, formed them “it must convict of first murder.” petitioner petitioner argues, constitutes a “outside influence” tainting prohibited Bonillas.
Petitioner’s is mistaken and his premise argument amiss. court, The trial rather jury they than “must telling convict petitioner murder,” of first degree told the that the original verdict “should forms have specified murder the first After degree.” them would informing be provided revised forms of verdicts (obviously to a of first referring verdict form and a not of first degree murder verdict the court form) instructed them to “deliberate and your render verdict.” Thus, merely the court iterated its original instructions providing jury choice of guilty first murder or not guilty. This was the sole purpose Bonillas, instruction, reconvening, and the court’s under neither a taint nor an outside influence.7
5. Retroactivity Bonillas.
Finally
petitioner urges,
noteworthy
an argument
for its imagina
tiveness, that Bonillas
retroactively
cannot be
In
applied
to this case.
other
words,
although
California
Court directed
Supreme
this court to recon
sider
the instant case
light
may
Bonillas we
not do so. We find
applying
“There are
principle
numerous decisions
this
verdicts
or in
Scott,
consistent with the court’s
instructions.
53 Cal.2d
561-562 [2
evidence showed and
instructed
on first
882] [where
innocence,
robbery
properly
accept
contrary
trial court
refused to
verdicts
in
to law and
degree robbery,
structions of second
(citing
and ordered
to resume further deliberations
1161)].” (People
p. 769.)
§
result and decline
in Bonillas
such an anomalous
nothing
suggesting
California
Court.
the clear directions of the
disregard
*10
Summary
the instant case:
Finally,
summary
the Bonillas
describes
aptly
“Where,
here,
has not been
are to take place,
further proceedings
they are still
have been
instructed that
discharged,
jurors
specifically
case,
the case with
they
in the
have been admonished not to discuss
jurors
them,
have
anyone
anyone
nor to
discuss the case with
and
permit
case,
jurors
been directed not to
about the
fn.
anything
read
[see
ante]
have not thrown off their character as
nor entered the outside world
of the
their
obligations shielding
thought processes
freed
admonitions
Clearly,
from outside influences.
here remained within the court’s
379, 384;
(see
Chong,
People
control
v. Lee Yune
94 Cal.
People
supra,
Thornton,
their ver
448]),
Cal.App.3d
Cal.Rptr.
[202
dict was
and the court was authorized to reconvene the
incomplete,
its
Disposition for a writ of mandate is denied. petition peremptory Lillie, J., P. concurred.
JOHNSON, J.I dissent. This case is before us for reconsid respectfully eration in light recent Court decision Bonillas Supreme People (1989) 844], Cal.3d 757 771 P.2d consid Cal.Rptr. Properly ered, I do not that decision to control under these facts. The interpret here, crucial difference is if it was not instructed that properly Hence, found the defendant of murder must also specify verdict was not . . . “incomplete (Id. under the instructions.” Since the 22 verdict was I find the defendant complete, would guilty of second murder as a matter of law under the settled and prevailing of section 1157 of the Penal Code. interpretation (Bonillas, supra, (cone. Arguelles, J.).)1 opn.
An
illuminating.
examination of
recent decisions
this area is
pertinent
In
v. Marks
tempt distinguished degrees, to commit a crime the court if a which is into or waived, guilty. attempted trial is must find the crime crime he is of which determine, Upon attempted the failure of the or the court to so of the crime or guilty, degree.” crime of which the defendant is shall be deemed to be of the lesser 260], the defendant circum with and with two gain. stances: wait and intentional murder for financial The trial lying court hearing failed to conduct after competency specifically questioning the defendant’s The case was tried before a which found competency. him of murder—without found one of the specifying degree—and to be true. The the trial special circumstances Court held court Supreme committed reversible error to hold the failing competency hearing addition, In reversed on that basis. the court also found other reversible errors jury’s occurred at trial. The Court “The explained: did not degree of murder of which defendant was convicted. Indeed, the trial court denied defendant’s instruc inexplicably requested *11 tion, 8.70, CALJIC No. that the the jury degree must of murder. specify 1157, century Section whose statute was enacted more than a predecessor ago, requires jury degree that a ‘must find the of crime or crime attempted of which he is We that guilty’ consistently have held section [the defendant] 1157 jury means that a must in its verdict the of explicitly specify degree the crime for which it convicts the defendant. v. (1984) McDonald 37 (People 351, 236, 709, Cal.3d 379-383 690 P.2d 46 A.L.R.4th Cal.Rptr. Marks, 1335, 1344, 45 1011].)” italics in supra, original, italics added.) McDonald, years 37 Cal.3d was decided four supra,
before Marks and was the on which the Marks precedent court principally McDonald, murder, robbery relied. In the charged defendant was with with a special circumstance he committed the murder while in the alleging robbery commission of or The attempted robbery. only theory was People’s felony jury solely murder. The was instructed on first murder and it degree returned a verdict in ... guilty “as the information.” But the trial court failed to instruct the jury degree must the of murder specify (McDonald, jury indeed failed to degree. specify The p. 379.) jury was and the verdict was recorded.2 polled The trial court realized its error in to to failing require of murder. Three and a half later degree weeks when the reconvened for the penalty the court submitted a new phase, “ form required degree to find ‘murder of the first to be ” true.’ The (McDonald, supra, 379.) Cal.3d at deliberat- p. true/not briefly ed a finding degree returned of first murder. true, special acquitted The found circumstance but nevertheless him of the sub footnote, charge robbery. Supreme explained apparent stantive In a Court inconsis tency by robbery acquit charge in the verdict the fact that it was not instructed it could on the attempted robbery. jury apparently but convict for Hence the based the circumstance robbery, attempted properly (McDonald, supra,
verdict on a itas could. 37 Cal. 3d fn. to this belated accept specification The Court refused verdict to be The court held Penal Code section jury’s implied finding second murder as a matter of law degree despite history The out: its pointed “[Throughout of first murder. court in in ‘failure’ of the deter- statute has been cases which the applied mine the of crime ‘consisted in an omission to that function perform in- because of mistake or inadvertence or circumstances an suggesting firmly thus leniency.’ tended act of rule is established [Citation.] the statute whenever the applies jury neglects explicitly specify (McDonald, crime.” 381; Cal.3d at quoting People 752].) Dixon 24 Cal.3d 51-52 The court went on to consider other decisions and summed the case up law “These stating: decisions illustrate rule that the statute applies reduce the jury’s even situations which the intent to convict of i.e., actions, the greater is demonstrated its other signing subsequent verdict form on an (Hughes) making finding enhancement assertion, (Beamon). Contrary to key is not whether the respondent’s ‘true intent’ of can be from gleaned circumstances outside the *12 instead, itself; verdict form only of the statute turns on application whether the jury the specified degree the verdict form. In the present case the verdict form failed to specify degree; the in the absence of such spe- cification, jury’s the finding on the circumstance irrele- special allegation is vant and the conviction must be deemed second a degree murder as matter of pursuant law to the unambiguous language of section 1157.” (McDonald, 37 Cal.3d 382.) at p.
The rejected court next the prosecutor’s jury that because the argument only was instructed on degree first murder and was not instructed on the murder, lesser included offense any of second verdict of on degree guilt the “First, murder charge could only degree: be first the terms of the statute are unambiguous. No special by is created for the situation exception presented case; this had the Legislature chosen to make section 1157 to inapplicable crime, cases in which the jury was instructed degree on one of a it easily could have so .... provided ‘establishes a rule to [The statute] which there is to be no authority and the Courts have no to create exception, ” an when the exception statute makes none.’ (McDonald, supra, 37 Cal.3d 382; 129, 138, at p. quoting People Campbell (1870) Cal. italics added.) verdict, The court then held because the jury degree failed to in its specify and a of degree any could not be to implied, attempt “correct” the by verdict resubmission of the question jury to the was inappropriate. “[I]t must be deemed as a matter of that law defendant was convicted of second 294- v. Johns Cal.App.3d murder. also
degree (See at 37 Cal.3d 182].)” (McDonald, supra, 295 757,3 framed for resolution as In 48 Cal. 3d the question case, whether, court under the circumstances by the court was of correcting of purpose for the authorized to reconvene was of the murder. degree its verdict specifying omission and completing cir with a burglary with murder and charged The defendant was The burglary. of murder in the commission of allegation cumstance murder it was “that if it found the defendant of was instructed murder.” Cal. 3d. degree (Bonillas, supra, required find of however, not furnished a verdict form jury, italics The added.) only that The verdict the did return degree. specified which to specify ” murder ‘as in the information.’ the defendant was “guilty call in were to The was then excused until when (Ibid.) next The penalty phase. receive instructions on when to reconvene for to the court’s attention day, Friday, January brought the defense January Monday, of murder. On jury’s failure to be motion that the jury, court reconvened the denied the defendant’s 1157, and instructed at second to Penal Code section degree pursuant fixed The with provided to reconsider the question and the jury promptly both first and second verdict forms of first degree. returned with January Court held that the 31 verdict was lawful because: instance, was instructed that if found defendant first “Jr However, for it was the murder. find by which to reason it was not furnished a verdict form some unknown *13 January 27 spe- the and the verdict it did return on degree, guilty
specify in the informa- only cified that defendant was of murder ‘as guilty degree the the required jury specify tion.’ Because the instructions of so, the was incomplete and the verdict returned to do failed omitted, citations (48 law and the instructions.” Cal.3d at p. under the added.) italics (a finding of the case
The court then held that under the circumstances initial were to take verdict was further incomplete, proceedings that the admonished had and had been jury discharged specifically not place, jury authorized to reconvene the case) not to discuss the the trial court was its ver- of the omission and correcting completing “for the purpose 770.) . . .” at (48 dict. Bonillas, supra, 48 approval in Both the Marks and McDonald decisions were cited with
Cal.3d 757. this case and distinction between and critical factual There is an obvious instructed, of murder degree by In not specifying Bonillas. failure to jury’s do. The that it was asked to had not done all jury the verdict rendered of it under the instructions all the tasks asked perform is made finding threshold the court. Once the in the of opinion the court’s analysis an of only then does jury incomplete, that the verdict is that the trial court crucial to a determination jury control over the become authority jury. to reconvene the had case. Here the circumstances are not this present
But those of make a specifically finding never instructed that it had to in- of murder. Nor was the guilty murder if it found the defendant of were on the murder findings possible structed that alternate of murder count.4 Since the was not told it needed to specify murder, if and since the verdict forms it found defendant did not did all that it was instructed to degree,5 provided specify Because the did all that was asked returning general guilty. verdict of it, i.e., they its verdict stated were told should state everything instructions, jurors’ viewpoint, under the the verdict is From the complete. complete there was no omission and verdict was and the verdict guilt terminated when assented to the verdict phase to Penal Code section accepted pursuant the court recorded 1164.6 felony request 4The court denied the defense’s second murder instruction sodomy although prosecution pled
based on the count admitted the information as would automatically not make it first as a matter of law but that it could be murder of degree. second 5 majority opinion explicitly if it concedes the trial court “did not instruct the that ante, (Maj. petitioner guilty degree. opn., . . .” found of murder it should first However, by linking majority logical consequence seeks to avoid the failure together pieces parts none of these unconnected from various of the court’s instructions. Yet degree. specifies quoted to make a Indeed the instructions tells is jury they any finding you tell the are to arrive at a verdict “and are instructions your (In way you verdict.” no can the find the defendant instructed include “[i]f relating murder in the . .” clause buried in the instructions circum first *14 finding degree verdict.) be an to include a as to in the Since stances tortured into instruction fully they degree, jurors complied were not instructed to include a of the in this case they findings in requirement with the come back with all the had been instructed to clude. 6 by provides pertinent part: verdict is the Penal Code section 1164 in “When the receivable Court, minutes, any requested by party upon . . . it in full and if the clerk shall record jury, disagree . . inquire of them whether it is their verdict. . no shall read it to the and [I]f complete, jury discharged ... be from the expressed, ment the verdict is shall is case.” 560 sum, jury
In because here the initial verdict was Bonillas’s complete, jury as to when a court is authorized to reconvene the to correct guidance an verdict is inapplicable.7
McDonald, contrast, by factually 37 Cal.3d is both and legally facts, identity from the case at bench. Based on the of indistinguishable resolution of this case should be no different. Here as in McDonald the defendant was alle- charged felony with with circumstance special As in gations. jury solely McDonald the was instructed on first murder. as in McDonald there no Again, requiring jury instruction to nor did the verdict form for the specify provide specification In jury both cases the found the circumstances true and found the defendant “murder as ... in the information.” McDonald, Here as in no jury polled, disagreement was noted jury the verdict was recorded. In both cases the was reconvened several time days later at trial jurors court informed the forms “should have murder in the first instead of specified simply murder. Revised forms of verdicts as to count I now be given you will murder in the first As in McDonald the specifying degree.” jurors promptly returned a verdict of first murder.
Thus, the instant case is like McDonald and unlike Bonillas.
in
Here as
McDonald
jury
the court failed to instruct the
it was
to
required
unlike Bonillas the
did all
degree. Consequently
jury
that was
of it
McDonald,
and the original
authority
verdict was
Under the
complete.
any
by
to correct the
attempt
resubmitting
jury
omission
to the
is unavail-
McDonald,
to
ing. According
terms of the statute
this
express
operate
jury
instance to render the
verdict second
as a matter
original
of law.
majority
may
7The rule cited
as to when the trial court
can be
reconvene
better
empowered
understood with reference to the cases cited therein. A trial court is
to re
convene the
for further deliberations when the error is discovered while the
are
(People
(1950)
Cal.App.2d
117]; People
still in the box.
v. Powell
99
178
P.2d
v. Ham
[221
(1970) Cal.App.3d
Cal.Rptr.
original
768
verdicts
these cases have been
[86
906] [the
“incomplete”].)
characterized as
However,
acknowledged,
if the
not
error was
discovered until after the verdict was
record-
box,
reconvening
possi-
ed and the
had left the
be
was held to
invalid due to
ble taint on the
from outside influences. The
Court referred to such verdicts as
“irregular.” (People
(1987)
Cal.Rptr.
Hendricks
561 1949, the to determine 1157 required Penal Code section Prior to do so. In of its failure to the consequences but did not degree, specify verdict be set that the held that such failure numerous cases it was See, Yung Chong, Lee 94 supra, e.g., People a new trial held. aside and amendments, automatically fixing the de- The effect of the 1949 Cal. 379. to the of a failure impact crime at reduced degree, second gree however, mandatory provision retained Legislature, The degree. must specify in Lillie offered her con- in Justice suggestion Presiding I find merit and before the initially considered this writ when this court curring opinion urged Legisla- Justice Lillie Presiding Court remanded it to us. 1157 to Penal Code section amending ture to serious consideration to give While I agree a to correct this of error. type make it easier for trial court statute, agree I do not is rewriting appro- should consider Legislature statute, way overturn over along for this court to priate rewrite years 100 of precedent. section 1157 re- consistently
Courts of this state have held Penal Code initial, ver- jury’s specified accepted be quires explicitly narrow, to Penal Code justifiable dict.8 Bonillas carved out a exception yet section 1157 where the has not the duties the trial court completed case, however, instant majority instructed it to The perform. opinion statute, nearly an at least capital swallows opens up exception instructions giving cases. verdicts can be new Completed reopened formally any time until the has specification already have committed from the case. This means who discharged they of murder and were thought themselves to the defendant suddenly can be told through guilt with their deliberations on the issue of hours, find the days later must a further and go step weeks now defendant of murder in the first degree. sequential sometime elect to sanction this form of Legislature may do But the Code sections 1157 and 1164 existing
verdict.
versions of Penal
stages,
of a
crime to be decided
guilt
single
not allow defendant’s
8
Dixon,
85,
See,
43, 51-52;
(1974)
e.g.,
People v. Flores
12 Cal.3d
People
24 Cal.3d
625, 629,
225,
353];
(1973)
Cal.Rptr.
People v.
8 Cal.3d
footnote
94-95
524 P.2d
Beamon
[115
681,
905];
(1978)
Cal.App.3d 281
Cal.Rptr.
People
2
504
v. Thomas
84
P.2d
[148
[105
775, 778,
Cal.Rptr.
532]; People
(1976)
Cal.App.3d
footnote 1
Cal.Rptr.
v. Baeske
58
[130
793];
(1973) 33
35];
(1974)
Cal.Rptr.
People v. Cox
People
Cal.App.3d
v. Doran
36
592 [111
760,
(1963)
43];
Cal.App.2d
Cal.App.3d
Cal.Rptr.
381-382
v. Fernandez
[109
679];
370];
Hughes (1959)
Cal.App.2d
P.2d
Cal.Rptr.
People v.
369-370
[340
702, 706,
729];
Peo
In re Candelario
3 Cal.3d
footnote
McDonald,
ple
379-383.
*16
on its own
undertake
I
this court should
Nor do believe
at a time.
law of this state.
of the settled
drastic revision
such a
reasons,
in this case.
have
the writ
granted
I would
the foregoing
For
denied
Court was
review
application
Petitioner’s
Mosk, J.,
should be
that the application
January
opinion
1990.
granted.
notes
an
that such instructions are not a sine
non to
verdict.
qua
incomplete
clear
law. and the
that “the verdict
under the
incomplete
Bonillas states
Bonillas,
769,
added.)
italics
(People
p.
instructions”
Thus,
clear,
being incomplete:
it is
there are two causes for the verdict
law and the instructions.
says
equally
What
its trial court
to
trial
regarding
applies
Bonillas
that,
no
noted the
question
case: “There is
had
court
court
this
complete
at
and
to retire at that time to
its
omission
once
verdict,
the murder would have
law
fixing
at
(48
p. 769.)
ful.”
Cal. 3d
court,
1161,5
a trial
section
authority
for such remedial action
jury,
incomplete,
does not
the instructions to the
depend upon
complete
“When
clear and
or unclear and
but
the verdict.
specific
unspecific,
upon
conviction,
there is a verdict of
in which it
to the Court that the
appears
have mistaken the
. . .”
italics
the court is
(§
added)
empowered
law
rectify
to
the mistake.
state,
to
making
authority
As Bonillas went on to
clear that trial court
instructions,
correct a defective verdict did not
the court’s
depend upon
are numerous
decisions
this
verdicts
applying
principle
“[t]here
or inconsistent with the court’s instructions.”
Cal.3d at
incomplete
(48
p.
769.) In its seven illustrations of this
Bonillas makes no
principle,
distinc-
(Id.
tion between inconsistent verdict cases and
verdict cases.
at
769-770.)
pp.
Later in its
without
opinion, again
dependence upon the court’s instruc-
tions,
remarked,
Bonillas
criminal as well as civil cases
is the duty
“[i]n
‘[i]t
verdict,
of a Court to look after the form and substance
aof
so as to prevent
a doubtful or
finding
Court;
insufficient
from
into the
passing
records of the
it,
can,
for that
the Court
at
purpose
any time while the
are
before
control,
under its
see that it is
amended
form as to meet the requirements
”
of the law.’
(