Lead Opinion
Opinion
INTRODUCTION
Defendant and appellant Illuminado Espíritu (defendant) was convicted of attempted voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a)),
A. Factual Background
Noemi Espíritu, defendant’s former wife, testified that on October 9, 2009, dеfendant entered her residence, stated to her “I will kill you,” stabbed her several times with a knife, and choked her.
The son testified that he called 911 to report the incident and saw his parents struggling over a knife. The son kicked his father and hit him with a kitchen chair, causing defendаnt to drop the knife.
Defendant testified that Noemi stabbed him first. During the incident, defendant and Noemi wrestled over the knife, and that may have caused Noemi to suffer her stab wounds. Defendant told a police officer that he only stabbed Noemi in self-defense.
B. Procedural Background
The District Attorney of Los Angeles County filed a second amended information charging defendant with first degree burglary in violation of section 459 (count 1), attempted first degree murder in violation of sections 664 and 187, subdivision (a) (count 2), and mayhem in violation of section 203 (count 3).
The matter was tried before a jury. The jury found defendant (1) not guilty of burglary, (2) not guilty of attempted murder, but guilty of the lesser offense of attempted voluntary manslaughter, and (3) not guilty of mayhem, but
C. Jury Proceedings
On count 2, the jury found defendant guilty of the lesser offense of attempted voluntary manslaughter, and the allegation that defendant personally inflicted great bodily injury under the circumstances involving domestic violence to be true. The jury initially found the allegation thаt defendant “personally used a deadly and dangerous weapon, to wit: a knife” to be not true, but, as discussed, ultimately found this allegation to be true
After the jury first provided the trial court with verdicts, the trial court summoned the prosecutor and defense counsel to a sidebar conference outside the presence of the jury, and during this sidebar conference, the trial court stated, “Never addressed this before on verdict forms with counsel before taking the verdicts. In this case, however, before we do it, I need to address count 2. [][] It appears in count 2, the jury is returning a verdict of guilty as to the lesser count of attempted voluntary manslaughter. However, when it gets to the special allegations, it finds it to be true in regards to the commission of the above offense personally inflicted great bodily injury upon Noemi . . . within the meaning of 12022.7(e). However, we then go to the next allegation of the—during the commission or attempted commission, he personally used a deadly or dangerous weapon, to wit: a knife, and they find that not to be true, [f] Does either counsel see any contradictions in that verdict?” Neither counsel offered an explanation.
The court’s clerk read the verdicts in the presencе of the jury. The trial court stated to the jury that it was “going to poll you individually as to some matters in your verdict forms.” The trial court asked the jury, “In regards to the lesser offense in count 2, finding the defendant guilty of attempted voluntary manslaughter, was it your verdict in finding the special allegation that the defendant personally inflicted great bodily injury upon Noemi . . . under 12022.7(e)?” Each juror replied that he or she found the allegation to be true.
The trial court then asked the jury, “in arriving at that finding in that special allegation, did you find that the—the great bodily injury inflicted upon Noemi . . . was inflicted with something other than a knife?” Each juror answered in the negative.
The trial court directed the court clerk to record the verdicts, and told the jury, “[The court will] send you back into the jury deliberation room as to the lesser оffense in count 2 to review your findings in terms of the deadly or dangerous weapon as to whether that is, in fact, your finding, [f] Send them back with the jury instructions also, madam clerk. If you need new verdict forms, please advise the court, and I will provide you with new verdict forms or you can leave the verdicts as they stand. Jurors, please retire to the jury deliberation room.”
Outside the presence of the jury, the trial court stаted to counsel, “In regards to the lesser included offense of attempted voluntary manslaughter, [the jury] found that the infliction of great bodily injury involving domestic violence was true, and then the finding that during the commission of the offense the defendant was—was personally armed with a dangerous or deadly weapon, that being a knife not to be true. [][] The court was inquiring to make sure that that was, in fact, their finding or that there wаs some other weapon or other instrument that may have caused them to make the finding in the bodily injury. The court heard no other evidence that could have caused the bodily injury.”
The trial court stated further, “The court gives no direction to the jurors. Just simply I’m trying to understand their verdict, given the evidence in this case. Both can’t be true in both instances. And both—and the court can see or read those verdict forms as a compromise verdict, which they’re entitled to make since they are—one can’t stand without the other in terms of findings. It would take an imagination beyond this court’s to arrive at a compromise
During the further deliberations, the jury completed a jury request or question form asking the trial court, “Count 2—Guilty. What does the further allegation mean (12022b)? [f] Please explain ‘use not being an element of the above offense.’ ” Before the trial court could answer the jury’s question, the jury stated that it had no questions, and they requested new verdict forms. The trial court stated that it would comply with the jury’s request for new verdict forms.
Defendant’s counsel stated, “Your Honor, when the court asked if I had any specific objection to that count 2, that lesser [offense], in terms of the procedure the court used, I do not. However, the court indicated that it could not see a logical way in which the [great bodily injury] could be caused unless the use of the knife, [f] Frankly, I did not see it at any time, but conferring with Mr. Aguirre from my office and conferred with [the prosecutor] briеfly, there is a scenario, even via a compromise perspective, where the jury could logically conclude that [defendant] never took possession of the weapon and, in essence, grabbing her wrist in a back and forth motion caused that injury. So, in essence, we have a logical conclusion to how those injuries could have occurred; although, be it a causation issue without the use of the weapon. I think if we had addressed that question or found out what their concerns were, it would have avoided this confusion.”
The trial court responded by stating, “But you can’t cause a great bodily injury unless you personally used a dangerous or deadly weapon.” Defendant’s counsel stated in response, “It stretches logic, but I don’t suggest that it defies it.”
The jury returned its new verdict forms. As to count 2, the jury changed its original finding on the allegation that defendant personally used “a deadly weapon, to wit: a knife,” by finding it to be true.
DISCUSSION
Defendant contends that the trial court erred because pursuant to section 1161, it was obligated to record an acquittal or a “not true” finding once it is rendered by the jury, even if it is inconsistent with other portions of the verdict or appears to be based on a mistake of fact or lаw. The Attorney
A. Forfeiture
Defendant’s counsel did not make an objection before the trial court that the trial court was improperly directing the jury to reconsider its “not true” finding. Defendant’s counsel merely stated a possible explanation for what appeared to the trial court to be inconsistent verdicts.
An objection is not necessary, however, to preserve a claim that defendant’s substantial rights have been violated. (See, e.g., People v. Barraza (1979)
B. Ineffective Assistance of Counsel
Even if a specific objection was necessary to avoid forfeiture of defendant’s argument on appeal that the trial court violated section 1161, if such an objection had merit, defendant’s counsel’s failure to make a specific objection constituted ineffective assistance of cоunsel. To prevail on an ineffective assistance of counsel claim, a defendant must show that the conduct of his trial counsel about which he complains fell below the standard of reasonableness and that he was prejudiced by that conduct. (People v. Kraft (2000)
Here, it is below the standard of care for defendant’s counsel not to object because the basis for the objection is clearly set forth by statute—section 1161. And, although the record does not disclose defendant’s counsel’s reasons for failing to object to the trial court not recording the “not true” finding and resubmitting the issue to the jury, there could be no satisfactory explanation for defendant’s counsel’s failure to object. Other than arguing that there was no error, Attorney General does not contend that defendant’s counsel could have had such an explanation.
Defendant’s counsel’s failure to make such an objection, if such an objection should properly have beеn sustained, was prejudicial to defendant. Defendant suffered a “true” finding, as opposed to a “not true” finding, concerning the allegation that defendant personally used a deadly weapon. Thus, even if forfeiture occurred, “we nevertheless must determine whether” a timely objection “would have had merit.” (People v. Marshall (1996)
C. Error
Section 1161 specifies that “when there is a verdict of acquittal, the Court cannot require the jury to reconsider it.”
“A jury’s verdict of acquittal or not true may not be questioned by anyone else or in any other forum, and a trial court may not probe further
The Attorney General contends that the trial court’s action was permissible under Bigelow v. Superior Court, supra,
As in Bigelow v. Superior Court, supra, 208 Cal.App.3d at pages 1137-1138, here any inconsistency in the verdict is one that is legally permitted. (People v. Avila, supra,
Article VI, section 10 of the California Constitution states, “The court may make any comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.” (See People v. Sturm (2006)
DISPOSITION
The jury true finding on the allegation that defendant personally used a deadly weapon—a knife—is reversed. This matter is remanded for resentencing and for correction of the minutes. The judgment of conviction is affirmed in all other respects.
Armstrong, J., concurred.
Notes
All statutory citations are to the Penal Code.
Because defendant and Noemi Espirito share the same surname, Noemi Espirito is referred to by her first name.
The trial court granted defendant’s motion pursuant to section 995, dismissing count 3 of a proposed first amended information charging defendant with mayhem in violation of section 203. The second amended information charged defendant with mayhem in violation of section 203 in count 4, but for purposes of the jury trial, count 4 was referred to as count 3.
On count 1, the jury also initially found defendant guilty of burglаry in the second degree, and that the allegation that “another person, other than an accomplice to the above offense, was present in the dwelling during the commission of the above offense” to be true. On count 3, the jury found defendant guilty of battery with serious bodily injury.
In addition, because each of the jurors responded, upon being polled by the trial court, that the burglary took placе in a residence, the trial court deemed that there was no verdict as to count 1, and sent the jury back to the jury deliberation room to review its finding that defendant was guilty of burglary in the second degree.
The jury also changed its original finding on count 1 and found that defendant was not guilty of burglary.
At the time of defendant’s trial, former section 1161 provided, “When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the court cannot require the jury to reconsider it. If the jury render a verdict which is neither general nor special, the court may direct them to reconsider it, and it cannot be recorded until it is rendered in some form from which it can be clearly understood that the intent of the jury is either to render a general verdict or to find the facts specially and to leave the judgment to the court.”
Concurrence Opinion
I concur in the reversal. In terms of the merits, Penal Code section 1161 requires the entry of a verdict or finding which indicates a jury’s decision to acquit. The trial court was requirеd to enter the not true finding; no ifs, ands or buts. Additionally, in my view: no jury coercion occurred; the violation of Penal Code section 1161 has been forfeited; no issue of any consequence has been raised which excuses forfeiture; the failure of defense counsel to object was prejudicial in terms of the deadly weapon use issue; even on direct appeal, such would constitute ineffеctive assistance of counsel; I would direct briefing on that issue;
On October 14, 2011, the opinion was modified to read as printed above.