Lead Opinion
Opinion
Under Penal Code section 1157,
Facts
On September 22, 1992, the Marin County Grand Jury returned an indictment accusing defendants Cruz Alberto Mendoza and Raul Antonio Valle of, among other crimes, “[m]urder in violation of Section 187(A),” second degree robbery (§ 211), and burglary (§ 459). These charges arose out of the killing of Pastor Dan Elledge at The Lord’s Church in Novato, California. As special circumstances for sentencing purposes, the indictment also alleged that defendants committed murder while they were engaged in committing robbery and burglary. (§ 190.2, subd. (a)(17).)
After the trial court granted defendants’ motion for separate trials, the prosecution presented its evidence against defendants simultaneously to separate juries. As to both defendants, the prosecution’s only murder theory was that Valle and Mendoza shot and killed Pastor Elledge while burglarizing and robbing The Lord’s Church (as one in a series of church robberies). Under section 189, all murder committed “in the perpetration of’ robbery or burglary “is murder of the first degree.” After the close of evidence, the trials proceeded independently for purposes of jury instruction, closing arguments, and return of the verdicts.
A. Mendoza Proceedings
In his defense, Mendoza, who admitted committing other crimes with (and without) Valle, maintained he never entered The Lord’s Church and did not participate in any of the crimes Valle committed there, including Pastor Elledge’s killing. In connection with the charge for that killing, Mendoza did not contend the jury could convict him of a degree or form of criminal homicide other than first degree felony murder. Nor did he ask the trial court to instruct the jury on lesser included offenses; his counsel agreed that because the prosecution had presented only a first degree felony-murder case, instructions relating to specific intent for other forms of first degree murder were unnecessary. Thus, Mendoza’s counsel expressly declined to request instructions on malice aforethought and premeditation and deliberation. At other points during the discussion of the instructions, Mendoza’s counsel expressed his understanding that the prosecution’s only murder theory was first degree felony murder.
Consistent with these proceedings, the trial court instructed Mendoza’s jury only on first degree felony murder as follows: “The defendant is accused in Count One of the indictment of having committed the crime of murder, a violation of Penal Code Section 187. HO Every person who unlawfully kills a human being during the commission or attempted commission of robbery or burglary is guilty of the crime of murder, in violation of Section 187 of the Penal Code. ftQ For clarification, that is one definition, that is not the only definition of murder, it’s the only one that applies to the facts of this case. R0 In order to prove such crime, each of the following elements must be proved: A human being was killed; the killing was unlawful; and the killing occurred during the commission or attempted commission of robbery or burglary, [ft] The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of robbery or burglary, is murder of the first degree when the perpetrator had the specific intent to commit such crime. flO The specific intent to commit robbery or burglary and the commission or attempted commission of such crime must be proved beyond a reasonable doubt. [^] If a human being is killed by a person engaged in the commission or attempted commission of the crimes of robbery or burglary, all persons who either personally committed the robbery or burglary,
The court also gave the following instruction: “In order to find the defendant guilty of the crime of murder, as charged in Count One, you must be satisfied beyond a reasonable doubt that, first, the crimes of robbery and burglary, charged in Counts Two and Three, were committed; and, second, the defendant aided and abetted such crimes; and, third, a co-principal in such crime committed the crimes of robbery or burglary as charged in Counts Two and Three; and, fourth, the crime of murder was a natural and probable consequence of the commission of the crimes of robbery or burglary as charged in Counts Two and Three.”
In addition, in instructing on the “lesser crime[s]” of which the jury could convict Mendoza if it found him not guilty of the charged crimes, the court did not mention any form of criminal homicide other than first degree felony murder. Consistent with these instructions, the verdict forms the court submitted to the jury did not give the jury the option to convict defendant of second degree murder or any other form of criminal homicide.
During its closing argument to the jury, the prosecution reaffirmed its focus on only first degree felony murder, explaining: “In order to find the defendant guilty of the crime of murder as charged [in] this Count 1, you must be satisfied beyond a reasonable doubt, folks, of the following: ft[] The crimes of robbery or burglary . . . were committed, that the defendant aided and abetted such crimes. I submit to you [he] not only aided and abetted but he actively participated as well in those crimes, a co-principal in such crime committed, the crimes of robbery or burglary as charged in Counts II or III with . . . Valle, and the crime of murder was a natural and probable consequence of the commission of the crimes of robbery or burglary as charged in Count II and III.” The prosecution further explained: “Murder has been defined for you. ... In this case it is the killing which occurred during the commission ... or attempted commission of a robbery or burglary. It is a first degree murder where the unlawful killing of a human being whether intentional, unintentional or accidental occurs during the commission or an attempted commission of the crime of robbery or burglary. And that is murder in the first degree when the perpetrator had the specific intent to commit the crime of either the robbery or the burglary. HQ So, if you folks find that Mr. Mendoza was perpetrating a burglary and Mr. Valle [was] perpetrating a burglary and/or a robbery and that Pastor Elledge was killed during the commission of those crimes, [then] he is guilty of first degree felony murder. And that is what the People submit to you the proof beyond a reasonable doubt shows in this case.”
As a transition to discussing the special circumstances instructions, the prosecution then remarked: “Now, there’s an instruction separate from the first degree murder which is the felony murder which we just discussed with the instruction.” In summing up, the prosecution asserted that the evidence proved beyond a reasonable doubt that Mendoza was “guilty of first degree murder” in connection with Pastor
Mendoza’s counsel began his closing argument by telling the jury: “Your job is to decide whether Alberto Mendoza is guilty of first degree murder at The Lord’s Church on August 26th, 1992. . . . [1Q This case is not about whether Mr. Mendoza is guilty of the robberies in Cerritos, Fairfield, San Jose or San Rafael. He’s admitted to you his guilt for those crimes. What it is about and the main decision you will have to make is whether he is guilty of the first degree murder that is charged in Novato at The Lord’s Church.” Defense counsel also stressed the prosecution’s assertion that “[i]t’s all or nothing,” i.e., that the prosecution has “either proven to you that [Mendoza] was in there doing this crime with [Valle] beyond a reasonable doubt, or he’s not guilty.” In summing up, defense counsel argued: “So, has the District Attorney proven Alberto Mendoza guilty beyond a reasonable doubt of first degree murder? I say that he has not.” Counsel concluded: “You should acquit Mr. Mendoza of first degree murder. He did not burglarize The Lord’s Church. He did not rob Daniel Elledge. He did not kill Daniel Elledge. He is innocent of these crimes.”
The jury found Mendoza “guilty of the offense charged in Count I, a felony, to wit, murder in violation of Section 187(a) of the Penal Code of the State of California.” After the clerk read this verdict aloud, the court asked each juror to indicate “ ‘yes’ or ‘no’ whether or not that was your vote on the charge of murder 187 first degree.” Each juror answered, “Yes.” The clerk then announced the jury’s true findings regarding the special circumstances, i.e., that Pastor Elledge’s murder “was committed by the defendant Alberto Mendoza while [he] was engaged in the commission of the crime of robbery” and “in the commission of the crime of burglary in the second degree.” As to the other charges arising from the events at The Lord’s Church, the clerk also read the jury’s guilty verdicts on burglary and second degree robbery. At the penalty phase of the trial, the jury found that Mendoza’s penalty should be life in prison without possibility of parole, rather than death. The trial court subsequently entered a judgment against Mendoza for first degree murder and sentenced him in accordance with the jury’s finding. The Court of Appeal affirmed the judgment.
B. Valle Proceedings
At trial, Valle conceded his guilt of all substantive charges but contested the special circumstances allegations. Thus, he admitted having committed first degree felony murder (as well as burglary and robbery) with Mendoza at The Lord’s Church. However, he maintained Mendoza had fired the fatal gunshots. Based on this contention, Valle also argued that at the time of the murder, he lacked the mental state a mere participant must have for a true finding on the special circumstances allegations. In making this argument, he relied on evidence that at the time of the murder, he suffered from posttraumatic stress syndrome related to prior combat experiences in El Salvador.
Consistent with the prosecution’s theory and Valle’s defense, the trial court instructed Valle’s jury only on first degree felony murder as follows: “The defendant is accused in Count One of the Indictment of having committed the crime of murder, a violation of Penal Code Section 187. ra Every person who unlawfully kills a human being during the commission or attempted commission of robbery or burglary, is guilty of the crime of murder, in violation of Section 187 of the Penal Code. [^Q In order to prove such crime, each of the following elements must be proved: First, a human being was killed; second, the killing was unlawful; and third, the
During closing argument, the prosecutor, after again reading to the jury the court’s instruction on first degree murder, stated: “It is clear from any interpretation of the evidence in this case that the defendant is guilty of first degree murder under this felony murder theory. Clearly he entered [The Lord’s Church] with the intent to commit theft, he admitted that to his own doctors.” The prosecutor also reiterated that for the first degree felony-murder rule to apply, the killing “can be unintentional or accidental. Which, in relation to the discharge of the firearm by this defendant, we argue to you was not accidental. . . . But in any event, it’s clear that he’s guilty of the first degree murder . . . .” Later, the prosecutor explained that he was “not asking you to find [Valle] guilty of any lesser included offenses.” The prosecutor closed by asserting that Valle “is responsible as the actual killer, of first degree murder of Dan Elledge, and that the special circumstances of committing that murder in the first degree during the commission of a burglary and robbery are true . ...” In his rebuttal, the prosecutor again asserted that he had proven beyond a reasonable doubt every element and issue of “the first degree murder on the felony murder theory.”
Defense counsel began her closing argument by explaining that she would not “spend any time telling you that . . . the prosecution, has not proven their case with regard to the robberies, the burglaries, and even the felony murder.” Counsel then focused the jury’s attention on the difference between first degree felony murder and the alleged special circumstances, explaining: “[W]hat I want to point out is that when you look at the special circumstances, at first it appears that the felony murder and the special circumstance are the same thing because you find first degree murder by the felony murder theory, or the felony murder rule, if you’re involved in the commission of a felony in someone’s eyes, even if it’s accidental, it’s first degree murder. flQ And then you turn to the special circumstance . . . .”
After closing arguments, the court discussed the verdict forms with counsel. Defense counsel began by asserting that a proposed verdict form on the murder charge contained “a mistake” because it was “a verdict form for premeditated and deliberate murder under [section] 187(a) . . . .” Counsel argued that the form “should read, ‘Murder, in violation of Section 189 . . . in that the murder was committed while the defendant was engaged in the commission of a felony, to wit, robbery and/or burglary.’ And that would be felony murder under [section] 189.” In reply to the court’s request that she explain this proposal, counsel replied: “Because . . . that’s the theory of the case, that’s what we’ve talked about, that’s what’s been put on . . . .” Counsel continued: “[M]y concern is with the felony murder language. . . . [U] . . . I think what it should say is . . . that, ‘to wit, this murder was committed during the commission of a felony,’ that it’s clear they’re finding . . . a murder based on felony murder . . . . [^Q There’s been so much discussion about—I mean, and the whole theory is that the murder is found by the killing happening during the commission of a felony .... [^] So I think it should be clear to [the jurors] at the time that they are—they are dealing with the verdict on murder or not that it’s felony murder, and that’s exactly what they’re finding.”
The prosecution objected to defense counsel’s proposal, asserting that a verdict form should never refer to “the theory” or “theories” of the murder. It also explained: “In this case, there is only one theory, so there can’t be any confusion as to what [the jury’s] finding is, it has to be in the commission of a felony.” Apparently agreeing with the prosecution, the court then denied defendant’s request that the verdict form refer to the prosecution’s legal theory. As in Mendoza’s trial, the verdict forms the court submitted to Valle’s jury did not give it the option to return a verdict for second degree murder or any lesser form of criminal homicide.
The jury found Valle “guilty of the offense charged in Count I, a felony, to wit, murder in violation of Section 187(a). . . It also found him guilty of second degree robbery and burglary, and found true the special circumstances allegations that he had committed the murder while committing robbery and burglary. After the clerk read these findings aloud, the court asked each juror: “With respect to the verdict of the jury in Count I, a violation of Section 187 . . . , murder, the finding of guilty, was that your individual verdict. . . ?” Each juror answered, “Yes.” At the penalty phase of the trial, the jury found that Valle’s penalty should be life in prison without possibility of parole, rather than death. The trial court subsequently entered a judgment against Valle for first degree murder and sentenced him in accordance with the jury’s finding. The Court of Appeal affirmed the judgment.
Discussion
The issue here is the proper construction of section 1157, which the Legislature first enacted as part of the Penal Code of 1872. As originally enacted, section 1157 provided: “Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of
Our fundamental task in making this determination is to ascertain the Legislature’s intent so as to effectuate the law’s purpose. (White v. Ultramar, Inc. (1999)
Applying these principles, we conclude that defendants were not “convicted of a crime . . . which is distinguished into degrees” within the plain and commonsense meaning of section 1157. We begin by considering the nature of felony murder. In California, the first degree felony-murder rule “is a creature of statute.” (People v. Dillon (1983)
The Legislature clearly was aware of many of these principles when it enacted section 1157 in 1872. In proposing the 1872 Penal Code to the Legislature, the California Code Commission explained in its note to section 189 that where a killing occurs during commission of one of the listed felonies, the question of degree “is answered by the statute itself, and the jury have [y/c] no option but to find the prisoner guilty in the first degree. Hence, ... all difficulty as to the question of degree is removed by the statute.” (Code commrs. note foil., Ann. Pen. Code, § 189 (1st ed. 1872, Haymond & Burch, commrs.-annotators) p. 83.) Where, as here, “a statute proposed by the California Code Commission for inclusion in the Penal Code of 1872 [was] enacted by the Legislature without substantial change, the report of the commission is entitled to great weight in construing the statute and in determining the intent of the Legislature. [Citation.]” {People v. Wiley (1976)
In light of these principles, we conclude that where, as here, the trial court correctly instructs the jury only on first degree felony murder and to find the defendant either not guilty or guilty of first degree murder, section 1157 does not apply. Under these circumstances, as a matter of law, the only crime of which a
A contrary construction would violate several principles of statutory interpretation. First, it would ignore the obvious purpose of the statute, which is to ensure that where a verdict other than first degree is permissible, the jury’s determination of degree is clear. Applying section 1157 where jury instructions correctly permit only a first degree felony-murder conviction would do nothing to further this statutory purpose.
Second, a contrary construction would place section 1157 in conflict (rather than in harmony) with the applicable principles regarding jury instructions and permissible verdicts where the evidence points indisputably to a killing committed while perpetrating a felony that section 189 lists, and would “do violence to the principle that the law does not require idle acts. (Civ. Code, § 3532.)” (Webber v. Webber (1948)
Finally, a contrary construction would produce absurd and unjust results. As we noted at the outset, where section 1157 applies, “[u]pon the failure” of the fact finder to determine degree, “the degree of the crime ... of which the defendant is guilty, shall be deemed to be of the lesser degree.” The Legislature added this provision to section 1157 in 1949 to change the
In arguing for a contrary interpretation, defendants rely primarily on our decision in People v. McDonald (1984)
We then turned to “address certain contentions dealing with the crimes for which defendant may be prosecuted on . . . retrial.” (McDonald, supra,
Responding to the defendant’s contention under section 1157, the Attorney General argued in part that “because the jury was instructed solely on first degree murder, any verdict of guilt on the murder charge could only be in the first degree. The jury was instructed that before it could return a verdict of guilt on the murder charge, it must unanimously agree on whether defendant was guilty of murder of the first degree. Thus, ... the jury’s verdict of guilty of murder ‘as charged’ constituted an implied finding of first degree murder.” (McDonald, supra,
We rejected this argument, finding “no reason why this variation in the facts should lead to a different result.” (McDonald, supra,
We then stated that “prior [judicial] applications of the statute suggest no rationale for excepting this case from the plain language of section 1157.” (McDonald, supra,
On reexamination, we conclude that we should not follow McDonald’s discussion of section 1157 under the circumstances in the present cases, and we overrule McDonald, supra,
A decision “is not authority for everything said in the . . . opinion but only ‘for the points actually involved and actually decided.’ [Citations.]” (Santisas v. Goodin (1998)
For several reasons, we do not find McDonald's dictum analytically persuasive. Principally, in relying heavily on Campbell and quoting from it extensively, McDonald failed to consider that Campbell did not construe section 1157, but construed a different statute with different language. Campbell construed section 1157’s predecessor, section 21 of the Act Concerning Crimes and Punishments (Act section 21). (Campbell, supra, 40 Cal. at pp. 137-138.) After defining murder in the first and second degrees, that section provided in relevant part: “[T]he jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict, whether it be murder of the first or second degree.” (Stats. 1856, ch. 139, § 2, p. 219.) As is readily apparent, Act section 21 did not contain the qualifying language of section 1157 we are now construing: “Whenever a defendant is convicted of a crime . . . which is distinguished into degrees.” Rather, without qualification, Act section 21 imposed a duty to make a degree finding on every jury hearing a case in which “any person” was “indicted for murder.” (Stats. 1856, ch. 139, § 2, p. 219.) Thus, Campbell “cannot be regarded as authority for proper construction of the quite different code section enacted in 1872.” (People v. Valentine (1946)
Indeed, the relevant legislative history suggests that the replacement of Act section 21 with section 1157 was a direct legislative response to Campbell's reading of the prior statute. The Legislature enacted section 1157 in 1872, only two years after we decided Campbell. In doing so, it deleted the very language—“before whom any person indicted for murder shall be tried”—on which Campbell focused in concluding that Act section 21 required all juries, without exception, to designate the degree of a murder conviction. (See Campbell, supra,
Moreover, because McDonald failed to acknowledge or consider the significant difference in statutory language, it also failed to recognize that the focus of Campbell’s analysis is not relevant to section 1157’s construction. As noted, the jury’s duty under Act section 21 to designate the degree of a murder conviction extended to “any person indicted for murder.” (Stats. 1856, ch. 139, § 2, p. 219, italics added.) Accordingly, the Attorney General’s argument and our statutory analysis in Campbell focused exclusively on the indictment. (Campbell, supra, 40 Cal. at pp. 137-141.) Given the language of Act section 21, we had no reason to consider, and our discussion did not mention, whether the trial court instructed the jury that the defendant could be convicted only of first degree felony murder. By contrast, such an instruction is very much relevant in determining whether a defendant has been “convicted of a crime . . . which is distinguished into degrees” within the meaning of section 1157. In simply following Campbell, McDonald did not consider this distinction.
Nor did McDonald consider that the consequence under Act section 21 of a jury’s failure to designate the crime’s degree was significantly different from the consequence under section 1157. In Campbell, the jury’s failure in this regard entitled the defendant to reversal of the judgment and a new trial. (Campbell, supra,
McDonald’s failure to consider these matters is not surprising, given the Attorney General’s contentions in that case. The Attorney General in McDonald did not argue that because the jury instructions permitted a conviction only of first degree murder, the defendant was not “convicted of a crime . . . which is distinguished into degrees” within the meaning of section 1157, the statute was inapplicable, and a degree determination was unnecessary. Rather, the Attorney General argued that in light of the jury instructions, “the jury’s verdict of guilty of murder ‘as charged’ constituted an implied finding of first degree murder.” (McDonald, supra,
Notably, in People v. Bonillas (1989)
Similarly, as we have already explained, the Attorney General in McDonald did not argue that in light of the jury instructions, section 1157 was inapplicable because the defendant was not “convicted of a crime . . . which is distinguished into degrees” within the meaning of section 1157. As we have also explained, McDonald's discussion failed to recognize the “critical distinction” (Bonillas, supra,
We reject defendants’ argument that we may not reconsider McDonald because the Legislature has acquiesced in that decision. “ ‘We are not here faced with a situation in which the Legislature has adopted an established judicial interpretation by repeated reenactment of a statute.’ (Italics added.) [Citations.] The Legislature has neither reenacted nor amended nor rewritten any portion of [section 1157] since [we decided McDonald]. The lawmakers, in short, have simply not spoken on the subject during the intervening years.” (People v. Daniels (1969)
In arguing to the contrary, defendants cite the Legislature’s consideration, and rejection, of proposed amendments to section 1157. As introduced in March 1990, Senate Bill No. 2572 (1989-1990 Reg. Sess.) would have amended section 1157 to provide that when a jury fails to determine the crime’s degree, instead of deeming the crime to be of the lesser degree, “the trial court or an appellate court may fix the degree ... if it is able to determine from other jury findings in the same case the degree the jury intended to fix. If this determination cannot be made, [on timely motion] the defendant shall be entitled . . . to a hearing before a new jury to determine the degree . . . .” (Sen. Bill No. 2572 (1989-1990 Reg. Sess.) § 1.) The Legislature later dropped the proposed amendment to section 1157 and ultimately passed a bill that amended section 1164 to specify “the degree of the crime” as one of the issues the trial court, before discharging the jury, must verify on the record the
In 1998 the Legislature again considered amending section 1157. As introduced, Assembly Bill No. 2402 (1997-1998 Reg. Sess.) would have made section 1157 “inapplicable whenever the crime [of which the defendant is convicted] is of the higher degree as a matter of law.” (Assem. Bill No. 2402 (1997-1998 Reg. Sess.) § 1.) It also would have added two new subdivisions to section 1157, providing: (1) “The failure to make [a degree] finding shall not prevent the degree from being determined by admitted evidence, the charging instrument, jury instructions given, or other jury findings that were made. In the event the jury fails ... to record the degree . . . , the court may, in its discretion, set the degree at the higher level where there is clear and reliable evidence to support such a determination. The court shall set forth on the record the facts and reasons for setting the degree at the higher level”; and (2) “If the degree cannot be determined, then the court, in its discretion, may either set the degree at the lower level or order a new trial, the sole issue of which shall be the determination of the degree.” (Assem. Bill No. 2402 (1997-1998 Reg. Sess.) § 1.) An amended version of the bill provided: (1) section 1157 “shall only apply to the situation where the finder of fact has a choice as to the degree”; and (2) “If the crime ... for which the defendant was convicted is a specified degree as a matter of law, upon the failure of the jury to determine the degree . . . , the court may fix the degree as specified. In determining whether the degree of the offense is a specified degree as a matter of law, the court may refer to the descriptive substantive definitions contained in the charging document, any factual finding contained in the verdict form, the fact that the jury was only instructed on a specified degree and not any lesser degree, or the fact that the jury was only instructed on one theory of the case.” (Assem. Amend, to Assem. Bill No. 2402 (1997-1998 Reg. Sess.) Apr. 29, 1998.) After another amendment in the Assembly, the bill was sent to the Senate, where it failed in committee.
We do not agree with defendants that these failed attempts to amend section 1157 require us to follow McDonald's discussion of section 1157. As Justice Mosk has written in a majority opinion for this court, “ ‘[ujnpassed bills, as evidences of legislative intent, have little value.’ [Citations.]” (Granberry v. Islay Investments (1995)
That the Legislature in 1990 ultimately amended section 1164 rather than section 1157 does not require a different conclusion. Legislation adopting McDonald, either expressly or impliedly, would logically be placed in section 1157, the specific section at issue, not in section 1164. (Cf. People v. King (1993)
Nor does our treatment of McDonald in subsequent decisions require that we follow its discussion of section 1157 under the circumstances now before us. Recently, in finding McDonald’s discussion of section 1157 irrelevant to construction of another Penal Code section, we stated: “In distinguishing [this] decision!], we do not comment upon [its] reasoning or conclusions.” (People v. Paul (1998)
Defendant Valle asserts that we “unanimously reaffirmed” McDonald in Marks II and in our earlier decision in the same case, People v. Marks (1988)
We are also mindful that our Courts of Appeal have been critical of McDonald and have adhered to it only grudgingly. In Escobar, supra,
We also conclude that the principle of stare decisis does not prevent us in these cases from reexamining McDonald’s discussion of section 1157. Because of the need for certainty, predictability, and stability in the law, we do not lightly overturn our prior opinions. (Sierra Club, supra, 21 Cal.4th at pp. 503-504.) However, this policy does not “ ‘shield court-created error from correction,’ ” but “is a flexible one” that permits us “to reconsider, and ultimately to depart from, our own prior precedent in an appropriate case.” (Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988)
Finally, “as is customary for judicial case law,” we conclude that our holding may be applied to defendants Mendoza and Valle “and is otherwise fully retroactive.” (People v. Birks (1998)
Given our conclusion that section 1157 does not apply in the present cases, we need not consider the Attorney General’s alternative contention that article VI, section 13 of the California Constitution precludes us from setting aside defendants’ convictions for first degree murder because any error in failure to comply with section 1157 did not “result[] in a miscarriage of justice.”
Conclusion
The judgment of the Court of Appeal is affirmed.
George, C. J., Baxter, J., and Brown, J., concurred.
Notes
Unless otherwise indicated, all further statutory references are to the Penal Code.
In 1978, the Legislature added language referencing attempts to commit crimes. (Stats. 1978, ch. 1166, §4, p. 3771.)
Justice Kennard errs in asserting that section 1157 applies “whenever a crime is ‘distinguished into degrees.’ ” (Dis. opn. of Kennard, J., post, at p. 929.) Since its 1951 amendment, the statute has applied by its terms only “[wjhenever a defendant is convicted of a crime . . . which is distinguished into degrees.” (§ 1157, italics added.)
Consistent with these principles, the Use Note to CALJIC No. 8.70 states in part: “If the only theory of murder supported by the evidence is first degree felony-murder, do not give this instruction.” (Use Note to CALJIC No. 8.70 (6th ed. 1996) p. 456.)
We are not establishing a rule that depends only on “the theory or theories argued by the prosecution” (dis. opn. of Mosk, J., post, at p. 928) or “the evidence presented by the prosecution.” (Dis. opn. of Kennard, J., post, at p. 938.) Rather, we hold that section 1157 does not apply where the jury instructions actually and correctly given do not permit the jury to consider or return a murder conviction other than of the first degree. Moreover, the cases before us do not, as Justice Kennard suggests, involve an attempt “to discover what the jury actually but unspokenly decided as to the degree of the crime charged” (Dis. opn. of Kennard, J., post, at p. 933) or “to divine what degree of crime the jury found.” (fid. at p. 934.) Rather, as explained, they involve a situation where, under proper instructions, the jury had no degree decision to make.
Nor would applying section 1157 under these circumstances further the statutory purposes the dissenters put forth. Where the trial court properly instructs the jury only on the elements of first degree murder and to convict only if it finds every one of those elements beyond a reasonable doubt, there is no “uncertainty" in the jury’s verdict to “avoid.” (Dis. opn. of Mosk, J., post, at p. 926.) There also is no danger that a jury returning a conviction has not “found all the elements constituting the higher degree of the crime.” (Dis. opn. of Kennard, J., post, at p. 930; see also dis. opn. of Werdegar, J., post, at p. 939.) Based on the evidence, the arguments, and its jury instructions, the trial court here promptly entered first degree murder judgments against defendants. Thus, applying section 1157 would not “promote . . . administrative efficiency.” (Dis. opn. of Mosk, J., post, at p. 926.) All it would do under the circumstances here is produce second degree murder convictions even though the jury unquestionably found defendants guilty of first degree felony murder. Unlike Justice Mosk and Justice Kennard, we fail to see how this result would further a legislative intent to “promote justice” (dis. opn. of Mosk, J., post, at p. 926) or “advance” justice. (Dis. opn. of Kennard, J., post, at p. 933.) Justice Werdegar agrees that reducing Valle’s conviction to second degree murder “is not a just result for this murderer.” (Dis. opn. of Werdegar, J., post, at p. 939.)
The principal basis for the statutory interpretation of Justice Mosk and Justice Kennard appears to be their view that it is neither absurd nor unjust to deem a murder conviction to be of the second degree despite proper jury instructions that permit only a first degree murder conviction and despite a defendant’s concession that he committed first degree felony murder. (Dis. opn. of Mosk, J., post, at p. 926; dis. opn. of Kennard, J., post, at p. 934.) Otherwise, they could adopt our construction of section 1157 notwithstanding their belief that it is “contrary to” the statute’s “plain language.” (Dis. opn. of Mosk, J., post, at p. 927; dis. opn. of Kennard, J., post, at p. 932.) Writing for a unanimous court, Justice Mosk has stated that statutory language “ ‘ “should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.” ’ [Citations.]” (Younger v. Superior Court (1978)
We disagree with Justice Mosk’s suggestion that as to section 1157, the legislative history of the 1872 statute “evinces the intent of the Commission for Revision of the Laws to ‘preservfe] ’ the ‘spirit and substance’ of existing law.” (Dis. opn. of Mosk, J., post, at p. 926.) In making this assertion, Justice Mosk partially quotes the preface to the 1872 Penal Code. However, as Justice Mosk elsewhere acknowledges (dis. opn. of Mosk, J., post, at p. 926, fn. 1), the partially quoted sentence actually states in full: “ ‘While many sections of existing laws have been redrawn to correct verbal errors and to give them precision and clearness, their spirit and substance have, in all cases, been preserved.’ ” (Code commrs., Preface, Ann. Pen. Code, supra, at p. vi., italics added.) By its terms, this sentence does not describe the fate under the new code of all existing sections, only of “ ‘many.’ ” {Ibid.) Indeed, only two sentences later, the Preface also states: “ ‘Many new sections have been introduced, but these were necessary to “supply the defects of and give completeness to the existing legislation of the State.”’” {Ibid.) The significant linguistic differences between section 1157 and Act section 21 indicate that section 1157 falls within this latter category of “ ‘new sections’ ” that “ ‘ “supply the defects of and give completeness to the existing legislation of the State” ’ ”; section 1157 did not merely “ ‘correct verbal errors’ ” in or give “ ‘precision and clearness’ ” to Act section 21. (Code commrs., Preface, Ann. Pen. Code, supra, at p. vi.)
None of the authorities Justice Kennard cites support her assertion that we “must” interpret section 1157 as Campbell interpreted Act section 21. (Dis. opn. of Kennard, J., post, at p. 937.) Section 5 states: “The provisions of this Code, so far as they are substantially the same as existing statutes, must be
Defendants ask that we take judicial notice of legislative materials relating to Senate Bill No. 2572 (1989-1990 Reg. Sess.), and the Attorney General asks that we take judicial notice of similar materials relating to Assembly Bill No. 2402 (1997-1998 Reg. Sess.). We grant these unopposed requests.
Regarding the 1998 legislation, the Attorney General cites a Senate committee report that (1) described the proposed amendment as “essentially codif[ying]” the Court of Appeal opinion in this case, (2) reported the view of the California Attorneys for Criminal Justice that the amendment was “unnecessary since the issue of what to do when the jury does not indicate degree is currently in front of the Supreme Court with the Mendoza case,” and (3) concluded by asking whether the issue “is better resolved by the Supreme Court.” (Sen. Com. on Public Safety, Rep. on Assem. Bill No. 2402 (1997-1998 Reg. Sess.) June 30, 1998, pp. 5-6.) The Attorney General finds it “clear” from this report and the proposal’s failure in the Senate committee that “the [L]egislature is looking to this Court to correct its error” in McDonald. Although we do not adopt the Attorney General’s conclusion, we agree that it is at least plausible.
The reliance of Justices Mosk and Kennard on these failed attempts to amend section 1157 (dis. opn. of Mosk, J., post, at pp. 926-928; dis. opn. of Kennard, J., post, at pp. 934-935) is inconsistent with the decisions we have cited, including Justice Mosk’s majority opinion in Granberry. The cases Justice Mosk cites do not hold to the contrary. DeVita v. County of Napa (1995)
In People v. Cain (1995)
Justice Mosk suggests that our conclusion is contrary to the manner in which we have “consistently” construed section 1157. (Dis. opn. of Mosk, J., post, at p. 925.) Justice Kennard asserts that we “disregardG” this court’s “consistent” interpretation of section 1157 “as requiring the jury to determine the degree regardless of the evidence or the instructions it receives.” (Dis. opn. of Kennard, J., post, at p. 929.) And Justice Werdegar insists that we must adhere to “this court’s long-standing interpretation of section 1157.” (Dis. opn. of Werdegar, J., post, at p. 940.) However, neither Justice Mosk nor Justice Kennard cites a case that discusses the issue here other than McDonald, a relatively recent (1984) decision. Although, after consideration, we have found McDonald’s dictum unpersuasive, we have not simply disregarded it. People v. Beamon (1973)
Dissenting Opinion
Idissent.
Penal Code section 1157 in pertinent part requires: “Whenever a defendant is convicted of a crime . . . which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime . . . of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime ... of which the defendant is guilty, shall be deemed to be of the lesser degree.”
We have consistently, until today, taken the Legislature at its word, strictly construing Penal Code section 1157 to require an express indication by the trier of fact of the degree of the offense. (People v. McDonald (1984)
Contrary to the majority’s assertions, there is nothing “unjust”—let alone “absurd” (maj. opn., ante, at p. 911)—about this simple bright-line rule as applied to a case involving a charge of felony murder. The clear legislative aim of the statute and its predecessor, section 21 of the amended Act Concerning Crimes and Punishments, dating back more than a century, is to avoid uncertainty with regard to the jury’s actual verdict and to promote justice and administrative efficiency by requiring a verdict that is clear on its face.
The majority, in a desperate attempt to discredit the analysis in People v. McDonald, supra,
As we observed in McDonald, “had the Legislature chosen to make section 1157 inapplicable to cases in which the jury was instructed on only one degree of a crime, it could easily have so provided.” (People v. McDonald, supra,
Apparently impatient with the continued failure of the Legislature in this regard, the majority undertake to limit the scope of the statute by judicial fiat. Overruling our settled construction of the statute, and contrary to its plain language, they now hold that the statute does not apply in this case because felony murder is not a crime
Abandoning the simple bright-line test of McDonald that required the verdict to specify on its face the degree of the crime, the majority substitute a new standard under which the failure of the jury to specify degree may be excused—or not—depending on the theory or theories argued by the prosecution. The majority’s approach is neither simple nor clear-cut; it will inevitably require examination on a case-by-case basis of the unique facts and circumstances to determine whether Penal Code section 1157 applies. The potential for costly and time-consuming litigation is obvious. Such a result does not, in my view, justify the majority’s exercise of what is more appropriately the legislative prerogative.
With regard to the verdicts herein, I agree with Justice Kennard, for the reasons cogently stated in her dissenting opinion, that the failure of the jury to determine the degree of murder of which it found Raul Antonio Valle guilty required that his conviction be deemed to be one of second degree murder. In my view, the same result is required in the case of Cruz Alberto Mendoza because, as in the case of Valle, although the jury found him guilty of the offense of murder, it failed to specify the degree of the crime in the verdict form; nor do the minutes record a verdict specifying the degree of the crime.
Thus, unlike Justices Kennard and Werdegar, I am not persuaded that the trial court’s polling of the jurors in the Mendoza case satisfied the requirements of Penal Code section 1157. After the verdict was rendered, finding Mendoza “guilty of the offense charged in Count I, a felony, to wit, murder in violation of Section 187(a) of the Penal Code of the State of California,” the jurors were polled as to whether “that was your vote on the charge of murder 187 first degree” and each answered in the affirmative. But they had not been instructed to—and had not—deliberated on or reached a verdict fixing the degree of murder; indeed, Mendoza’s request for an instruction requiring the jury to specify degree was rejected. Accordingly, the jurors did not endorse or assent to the verdict actually returned and recorded in the minutes. In effect, the trial court, in its polling of the jurors to determine unanimity of the verdict, merely imputed the additional finding to them; it did not purport to correct the verdict by such means or otherwise follow the appropriate procedures for doing so. (Cf. Pen. Code, §§ 1163, 1164; People v. Cain (1995)
Penal Code section 1157, like the statute on .which it was modeled, “establishes a rule to which there is to be no exception, and the Courts have no authority to create an exception when the statute makes none. ftQ We have no right to disregard a positive requirement of the statute, as it is not our province to make the laws, but to expound them.” (People v. Campbell, supra,
For these reasons, I would hold that the convictions of Cruz Alberto Mendoza and Raul Antonio Valle must be deemed second
Accordingly, I dissent.
Section 21 of the Act Concerning Crimes and Punishments, as amended, provided: “[T]he jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict, whether it be murder of the first or second degree.” (Stats. 1856, ch. 139, § 2, p. 219.) In People v. Campbell (1870)
Dissenting Opinion
Our Penal Code provides that certain defined murders are “of the first degree” while “[a]ll other kinds of murders are of the second degree.” (Pen. Code, § 189.) The Penal Code also provides that whenever a crime is “distinguished into degrees,” the jury “must” find the degree of the crime of which the defendant is guilty. (Pen. Code, § 1157; hereafter section 1157.) If the jury fails to so determine the degree, the crime “shall be deemed to be of the lesser degree.” (Ibid.)
The majority holds that, contrary to the plain language of these statutes, an unwritten exception exists to section 1157: According to the majority, murder is not always a crime divided into degrees, and a defendant should be convicted of first rather than second degree murder notwithstanding the jury’s failure to determine the degree if the prosecution presents evidence that would support only a first degree murder conviction and the court so instructs the jury.
I disagree. The majority disregards not only the plain language of section 1157, which admits no exceptions, but also this court’s consistent interpretation of section 1157 as requiring the jury to determine the degree regardless of the evidence or the instructions it receives. Rather than rewriting section 1157 to create a novel exception, I would follow its clear command.
I
Defendants Cruz Alberto Mendoza and Raul Antonio Valle were tried by means of the simultaneous presentation of evidence to two separate juries, which separately convicted each defendant of murder, robbery, and burglary. Each jury also found true robbery-murder and burglary-murder special circumstances. Each jury recorded its decisions on written verdict forms, but the forms did not specify the degree of murder for either defendant. In the case of Mendoza but not Valle, the court polled the jury, asking each juror whether “that was your vote on the charge of murder 187 first degree.” (Italics added.) Each juror individually answered “yes.” The trial court pronounced judgment sentencing each defendant to life without parole, the punishment for first degree murder with a special circumstance.
On appeal, both defendants contended that section 1157 required the reduction of their murder convictions to second degree murder. The Court of Appeal disagreed, holding that, even if the jury’s failure to determine degree in the verdict forms violated section 1157, the harmless error provision of article VI, section 13 of the California Constitution applied to the error. The Court of Appeal concluded the errors here were harmless on the ground that the evidence and instructions supported only a conviction for first degree murder under a felony-murder theory, and not a second degree murder conviction.
II
At issue here is section 1157: “Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.” The prosecutor and the trial court bear responsibility for ensuring that the jury or the court complies with section 1157. (Pen. Code, § 1164, subd. (b); People v. Superior Court (Marks) (1991)
To properly understand the function of section 1157, it is first necessary to recognize two federal “constitutional protections
Murder is a crime divided into degrees. Penal Code section 189 divides murder into murders of the first degree and murders of the second degree. First degree murders as defined in section 189 include what are commonly referred to as felony murders—murders “committed in the perpetration of, or attempt to perpetrate,” certain other crimes, including robbery. As we have previously recognized, in many homicides the evidence before the jury would permit it to return either a verdict of first degree murder under a felony-murder theory or a second degree murder verdict, in addition to other possible verdicts, depending upon what evidence the jury finds credible. (People v. Jeter (1964)
The prosecution argues that section 1157 does not apply to a jury’s failure to determine degree when, as here, the only theory of murder presented to the jury in the instructions and supported by the evidence was first degree murder based on a felony-murder theory. I disagree.
By its plain language, section 1157 applies without regard to the evidence the prosecution has presented in support of the crime or the instructions that the jury has received. Whenever the jury fails to determine the degree of a crime, the conviction by operation of law is “deemed to be of the lesser degree.” {Ibid.) As the word “deemed” makes clear and as the entirety of section 1157 confirms, in such cases section 1157 makes no inquiry into what determination of degree the jury made or could have made under the facts of the case. Instead, to protect the constitutional rights of defendants the Legislature has created a bright-line rule that when the court and the prosecution fail in their duty to ensure that the jury expressly determines the degree of the crime, the conviction becomes one for the lesser degree of the crime. This is a policy judgment of the Legislature’s that we are bound to respect.
Nor is the conclusion that section 1157 contains no exceptions novel. In People v. McDonald (1984)
In an opinion Justice Mosk wrote for a unanimous court, we rejected that argument: “This precise contention has been rejected in a long line of decisions which require that the degree be explicitly specified by the verdict.” (People v. McDonald, supra,
III
Applying section 1157 to the facts of this case yields these results: In the case of defendant Valle, the jury made no determination of the degree of the murder of which it found him guilty. Therefore, section 1157 deems his conviction to be one of second degree murder. In the case of defendant Mendoza, although the written verdict form did not specify the degree of murder, when the court subsequently polled the jurors and asked them whether their verdict was for “murder 187 first degree,” they each responded “yes.” This oral statement by the jury that Mendoza committed first degree murder is sufficient to satisfy section 1157, for there is no general requirement that the jury give its verdict in written form. (See Pen. Code, §§ 1149, 1164.) Accordingly, his conviction is for first degree murder.
IV
To rescue the prosecution in this case from its failure to insist that the jury state its finding as to degree in the case of defendant Valle, the majority is forced to adopt a novel and unsupported interpretation of section 1157 that is contrary to the statute’s plain language. The majority holds that in a murder case in which the prosecution presents evidence supporting only a first degree murder verdict, murder becomes a crime no longer divided into degrees. (Maj. opn., ante, at p. 900.)
The effect of the majority’s holding is to treat felony murder as though it were a separate crime. It is not, of course. Rather, it is only one of various alternative means by which one degree of murder may be committed. Doubtless, the Legislature could have chosen to create felony murder as a separate crime, rather than a form of one degree of murder; equally doubtless, it did not.
The majority ignores a fundamental principle of statutory construction: In determining legislative intent, we begin with the language of the statute, however unwise, ill-crafted, or imprudent we may think it to be. When the statutory language on its face answers the question before us, that answer is binding unless we conclude the language is ambiguous and its plain meaning does not correctly reflect the Legislature’s intent. (People v. Broussard (1993)
In People v. McDonald, supra,
Even if the majority’s eccentric reading of section 1157 were plausible enough to create a statutory ambiguity, however, the reasons presented by the majority would be insufficient to demonstrate that the majority’s reading correctly reflects the Legislature’s intent. In section 1157, the Legislature sought to advance justice and protect the rights of defendants. The means it chose was a bright-line rule that does not seek to discover what the jury actually but unspokenly decided as to the degree of the crime charged. Instead, under section 1157 á jury “must” in every case determine the degree. If it fails to, section 1157 “deem[s]” that as a matter of law the defendant may only be convicted of the lesser degree. The statute makes no exceptions to its rule.
Section 1157 by its very nature may result in convictions for the lesser degree of the charged crime in some cases where the jury has probably intended to convict defendant of the greater crime but has failed to expressly state that finding. The Legislature, however, has chosen not to have courts make a case-by-case inquiry into the jury’s unstated conclusions to attempt to divine what degree of crime the jury found.
The majority’s position is founded on the fallacy that it is absurd and contrary to section 1157’s purpose for the Legislature to advance its goal of protecting defendants by means of a bright-line rule. That the Legislature has chosen a bright-line rule that may result in a conviction for the lesser degree in some cases in which the jury would have convicted of the greater degree, however, does not make it absurd to apply the rule to those cases nor does it authorize us to rewrite the rule. There is nothing absurd in deferring to the plain language of Penal Code section 1157 and concluding that the Legislature intended the section to apply to all murder convictions, not just convictions based on certain theories of murder and not others. And it is fully consonant with, not contrary to, section 1157’s purpose of protecting the rights of defendants to require in every case that a defendant not be convicted of the highest degree of a crime except when a jury expressly so finds on the record.
By judicially inventing an exception to section 1157 that the Legislature has chosen not to enact, the majority usurps the Legislature’s authority. Had the Legislature intended such an exception, it could have easily enacted one, as this court noted in People v. McDonald, supra,
In 1990, a bill introduced in the Legislature would have permitted the following if the jury failed to expressly determine the degree: “[T]he trial court or an appellate court may fix the degree . . . if it is able to determine from other jury findings in the same case the degree the jury intended to fix. If this determination cannot be made, . . . [on timely motion] the defendant shall be entitled to a hearing . . . before a new jury to determine the degree . . . .” (Sen. Bill No. 2572 (1989-1990 Reg. Sess.) § 1.) This bill was not enacted, and instead the
In 1998, another bill introduced in the Legislature would have permitted the trial court to determine the degree from the “admitted evidence, the charging instrument, jury instructions given, or other jury findings that were made” and to “set the degree at the higher level where there is clear and reliable evidence to support such a determination.” (Assem. Bill No. 2402 (1997-1998 Reg. Sess.) § 1.) If the court was not able to determine the degree, it could then “either set the degree at the lower level or order a new trial, the sole issue of which shall be the determination of degree.” {Ibid.) The bill was then amended to provide that section 1157 “shall only apply to the situation where the finder of fact has a choice as to the degree” and that “If the crime ... for which the defendant was convicted is a specified degree as a matter of law, upon the failure of the jury to determine the degree . . . , the court may fix the degree as specified. In determining whether the degree of the offense is a specified degree as a matter of law, the court may refer to the descriptive substantive definitions contained in the charging document, any factual finding contained in the verdict form, the fact that the jury was only instructed on a specified degree and not any lesser degree, or the fact that the jury was only instructed on one theory of the case.” (Assem. Amend, to Assem. Bill No. 2402 (1997-1998 Reg. Sess.) Apr. 29, 1998.) This bill too was never enacted.
The majority also rejects as dictum this court’s conclusion in People v. McDonald, supra,
Section 1157 derives from a statute originally enacted in 1856 that accomplished several purposes. (Stats. 1856, ch. 139, § 2, p. 219; hereafter the 1856 statute.) The 1856 statute was the first to divide the crime of murder into degrees; previously, murder had been a unitary crime. In doing so, the 1856 statute assigned murder committed in the course of certain felonies to the category of first degree murder. {Ibid.) Finally, it required the jury to determine the degree of murder. It accomplished all of this in a single sentence: “All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict, whether it be murder of the first or second degree . . . .” {Ibid.)
There is no doubt, and the majority does not dispute, that the plain language of the 1856 statute required the jury in every murder case to specify the degree of the murder, regardless of the evidence or argument presented in support of the charge. This court so held 130 years ago in People v. Campbell, supra,
It would have been absurd for the court in People v. Campbell, supra,
In 1872, as part of the general codification of California law, the 1856 statute was replaced by section 1157. As originally enacted as part of the Penal Code of 1872, section 1157 provided: “Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.” Section 1157 did change the 1856 statute, but it did so by generalizing the rule’s application from the crime of murder alone, as was the case under the 1856 statute, to every crime “distinguished into degrees.” The majority here suggests that, by deleting the reference to murder indictments that had been present in the 1856 statute, the Legislature in 1872 intended to abrogate this court’s decision in People v. Campbell, supra,
Moreover, section 5 of the Penal Code, enacted as part of the 1872 codification and continuing in effect to this day, provides: “The provisions of this Code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments.” (Italics added.) Because section 1157 is substantially the same as the 1856 statute, especially with respect to the crime of murder, “the codified act carries the same [judicial] interpretation as the original one.” (People v. Ellis (1928)
And this court has done so. In 1887, 15 years after the enactment of section 1157, this court relied on People v. Campbell, supra,
Since 1872, section 1157 has been amended three times. It was amended in 1949 to provide that the consequence of a jury’s failure to specify degree is a conviction for the lesser degree rather than, as formerly, a new trial. (Stats. 1949, ch. 800, § 1, p. 1537.) It was then amended in 1951 to expand its scope to include convictions in court trials as well as jury trials. (Stats. 1951, ch. 1674, § 109, p. 3849.) It was again amended in 1978 to expand its scope to include convictions for attempts to commit crimes of degree. (Stats. 1978, ch. 1166, § 4, p. 3771.) All three amendments retained unchanged the “crime . . . distinguished into degrees” formulation of the original 1872 version of section 1157 and none of them evidenced any intention to limit the application of section 1157 in cases where the prosecution presents evidence directed at only a single degree of a crime.
As this review shows, the majority subverts both the plain language and the long history of section 1157 when it concludes that the statute contains an unwritten exception whose application depends upon the evidence presented by the prosecution. There is no basis at this late date to change course and abandon our settled conclusion that the statute governs in all cases in which the jury fails to determine degree, an interpretation which faithfully adheres to the statute’s plain language.
V
The prosecution argues that, even if defendant Valle’s jury failed to comply with section 1157, the judgment imposing on him a first degree murder sentence should be affirmed under article VI, section 13 of the California Constitution (hereafter article VI, section 13). That section provides: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Ibid.)
Article VI, section 13 does not salvage the trial court’s judgment punishing Valle for first degree murder. Once the jury returned a verdict of murder without specifying the degree and was discharged, section 1157 made Valle’s conviction one for second degree murder by operation of law. The error here was the trial court’s failure to recognize that Valle’s conviction was for second degree murder and to sentence him accordingly. This error was obviously prejudicial to Valle, resulting in an illegal sentence exceeding the maximum permitted for a second degree murder conviction.
Conclusion
For the reasons given above, I would affirm the first degree murder conviction of defendant Mendoza, while I would reduce the first degree murder conviction of defendant Valle to second degree murder.
Werdegar, J., concurred.
Dissenting Opinion
I dissent, albeit reluctantly. The majority opinion amply illustrates the illogic of a strict application of Penal Code
Nevertheless, the issue raised in this case transcends our concern that Valle’s conviction reflect his true culpability. The history of section 1157, including the recent amendments to both sections 1157 and 1164, subdivision (b), demonstrates persuasively that the Legislature has acquiesced to the fairly rigid interpretation this court has given to section 1157. As explained in Justice Kennard’s dissenting opinion, that interpretation, which would require lowering the degree of the murder for defendant Valle, is one of almost ancient lineage.
Section 1157 represents a legislative response to the situation where a jury, in convicting a defendant of an offense divided into degrees, fails to specify the degree of the offense. As the majority explains (maj. opn., ante, at p. 911), before the Legislature in 1949 amended section 1157 to provide that in such circumstances the degree of the crime shall be deemed the lesser degree, the judicially declared rule was that a jury’s failure to determine degree entitled the defendant to a new trial. Section 1157, therefore, represents the Legislature’s considered decision, in fashioning a just remedy for the error, to reject retrial as a remedy. In so doing, the Legislature balanced a variety of factors. These include, on the one hand, the financial cost of retrial, the emotional cost to the victims and other witnesses who must again testify at the retrial, and the possibility the defendant could be acquitted on retrial. Balanced against these costs, on the other hand, are a defendant’s constitutional right to have a jury decide all the elements of the charged crime, the infrequency of the error, the ability of the prosecutor to call attention to an omission before the jury is discharged, the statutory duty of the trial court to ensure—and verify on the record—that the jury has reached a verdict on the degree of the crime (§ 1164, subd. (b)), and fairness to the defendant, who would have to run the gauntlet a second time. The Legislature’s solution was to eschew retrial, but to reduce the offense to the lesser degree as a matter of law.
That the Legislature’s resolution of this problem is not necessarily the one I would have chosen is of no consequence; it is the one the Legislature did choose and has adhered to. Nor is it, as the majority proclaims, an “absurd” policy choice (maj. opn., ante, at pp. 911-912). To balance the complex policy concerns involved in cases in which the jury fails to specify the degree of a crime, and conclude a clear bright-line rule should govern, is not absurd even in those few cases in which a guilty defendant might obtain an unjust benefit.
In any event, it appears the Legislature has acquiesced to this court’s long-standing interpretation of section 1157, and we are not at liberty to disregard its views. Judicial restraint and respect for the Legislature’s work compel that we adhere to our previous interpretations absent some indication the Legislature intends some different meaning. “ ‘[A]s this court has often recognized, the judicial role in a democratic society is fundamentally to interpret laws, not to write them. The latter power belongs primarily to the people and the political branches of government . . . .’ (Kopp v. Fair Pol. Practices Com. (1995)
Members of this court and of the lower appellate courts have urged the Legislature to look at section 1157 anew (see People v. Bonillas (1989)
Although the majority’s reinterpretation of section 1157 admittedly would impose on defendant Valle a sentence commensurate with his culpability, I find I cannot endorse the majority’s reasoning without intruding on the role of the Legislature. Accordingly, until that body amends section 1157 to change the statute’s meaning from the bright-line rule it now provides to one permitting an examination of the individual facts of each case, I would reluctantly adhere to our previous interpretation of that statute (People v. McDonald (1984)
Appellants’ petition for a rehearing was denied September 13, 2000. Mosk, J., Kennard, J., and Werdegar were of the opinion that the petition should be granted.
All statutory references are to this code.
I agree with Justice Kennard that the polling of the jury provides sufficient justification to conclude the degree of defendant Valle’s murder conviction must be lowered, but that of his codefendant Cruz Alberto Mendoza need not be.