The PEOPLE, Plaintiff and Respondent,
v.
Floyd Maurice PALMER et al., Defendants and Appellants.
Supreme Court of California.
*14 Patrick Morgan Ford, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Floyd Maurice Palmer.
Michael Satris, Bolinas, under appointment by the Supreme Court, for Defendant and Appellant Donald Edmond Price.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey W. Koch, Robert M. Foster and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
CHIN, J.
We granted review to decide whether the so-called rule of consistency that the acquittal of all alleged coconspirators but one requires acquittal of the remaining alleged conspiratorrequires the reversal of a conspiracy conviction in this case, and whether similar principles require the reversal of a finding as to one but not both codefendants that an attempted murder was premeditated. We conclude that the rule of consistency is a vestige of the past with no continuing validity. Many reasons may explain apparently inconsistent verdicts: lenience, compromise, differing evidence as to different defendants, or, possibly, that two juries simply viewed similar evidence differently. If substantial evidence supports a jury verdict as to one defendant, that verdict may stand despite an apparently inconsistent verdict as to another defendant.
In this case, substantial evidence supports the conspiracy conviction and the premeditation finding. Accordingly, we affirm the judgment of the Court of Appeal, which affirmed this conviction and this finding.
I. Factual and Procedural History
On December 11, 1996, codefendants 15 year old Floyd Maurice Palmer and 29 year old Donald Edmond Price engaged in a crime spree, only part of which is relevant to the issues now before us.
As relevant here, the evidence at trial showed that еarly that morning, Price was driving his blue Chevrolet Nova, with Palmer in the passenger seat. Price drove past Richard Humphries, who was driving a red Ford Escort, moved in front of him, and slowed down so that Humphries had to pass him. Price pulled alongside Humphries, and Palmer fired one shot with a black .25 caliber semiautomatic handgun. The bullet broke Humphries's driver's side window and grazed his scalp. Humphries tried to speed away, but Price pulled alongside him again. Humphries slammed on his brakes. Palmer fired a second shot, breaking Humphries's left rear window and striking a door post. Price stopped, then started to back up. Humphries got away by turning around and driving on the wrong side of the divided highway. Price testified that he did not know Palmer had a gun or was going to shoot Humphries. He said Palmer fired only one shot, after which he slammed on the brakes. He denied pursuing Humphries. Palmer testified that Price gave him the gun and told him to shoot, hitting him across the mouth when he refused. He then fired once or twice but, he said, without aiming at Humphries or intending to kill him.
A couple of hours later, Price, now driving a stolen pickup truck, sideswiped Judith Showalter's 1996 BMW. Both drivers stopped. Price got out of the truck and apologized to Showalter, saying his brakes had locked. Palmer also got out of the truck. He went to Showalter's car, opened the door, said, "take this, bitch," then shot Showalter in the head. She slumped over and played dead. The two men took her pager and purse. One of them pulled her out of the car and left her on the ground. They drove away in the BMW, leaving behind the truck and other property they *15 had stolen that morning. Showalter survived despite suffering major injuries. The bullet had entered her head near the left eye and exited at the right earlobe. Price testified that he and Palmer had agreed to rob Showalter, but he denied knowing Palmer would shoot her. Palmer denied knowing that Price was going to sideswipe Showalter's car or rob her. He testified that Price forced him to shoot Showalter, but he did not intend to kill her.
Price and Palmer each gave statements to the police implicating the other. The prosecution charged them together for these crimes and argued it would be too stressful for Showalter to have to testify at separate trials. For these reasons, the trial court ordered them tried together but by two separate juries. During the trial, Palmer chose to have his jury hear Price's pretrial statements. After Palmer had testified in his own defense, Palmer's pretrial statements were admitted in rebuttal. Accordingly, in the end, both juries heard essentially the same evidence.
Among other charges, the prosecution charged both Price and Palmer with attempted murder of Humphries, alleged to have been premeditated (Pen.Code, §§ 187, 664), and conspiracy to murder Showalter (Pen.Code, §§ 182, 187, subd. (a)). Price's jury found him guilty of all charges and found the premeditation allegation true. Palmer's jury found him guilty of the other charges and of attempting to murder Humphries, but it found the premeditation allegation not true and found him not guilty of conspiracy to murder Shоwalter. The court sentenced both defendants to state prison.
Both defendants appealed. Price argued that the premeditation finding and conspiracy conviction had to be reversed in light of the different verdicts the other jury made as to Palmer. In an opinion authored by Justice Richli, the Court of Appeal modified the judgments slightly, but otherwise affirmed them. It rejected Price's arguments regarding the premeditation finding and conspiracy conviction. The court recognized that current California authority supports the general rule that the acquittal of all but one alleged coconspirator requires the acquittal of the remaining one. In a comprehensive analysis, it expressed doubt that the rule remains valid but, partly because the California authority includes dicta from this court, it ultimately concluded that "stare decisis counsels us to acquiesce." Nevertheless, it found that the rule applies only to defendants tried together before a single jury, not to defendants tried separately or, as here, together but before separate juries. Accordingly, it upheld the verdicts in this case. The court also stressed that it acquiesced in the rule of consistenсy "only reluctantly. We believe the entire topic of inconsistent verdicts against coparticipants is ripe for reexaminationand revisionby the Supreme Court."
Both defendants petitioned for review. We granted Price's petition, limited to whether the verdicts as to codefendant Palmer require reversal of Price's conspiracy conviction and premeditation finding.
II. Discussion
Price argues that, because it takes at least two to conspire, the verdict finding Palmer, his only alleged coconspirator, not guilty of conspiracy is inconsistent with his conviction for the same conspiracy. This inconsistency, he further argues, requires us to reverse that conviction. He makes a similar argument regarding the premeditation findings. We disagree. The conspiracy verdicts, if not the premeditation findings, are indeed inconsistent, but both may be given effect. The law generally accepts inconsistent verdicts as an occasionally inevitable, if not entirely satisfying, consequence of a criminal justice system that gives defendants the benefit of a reasonable doubt as to guilt, and juries the power to acquit whatever the evidence.
The United States Supreme Court has embraced this general rule. "Inconsistency *16 in a verdict is not a sufficient reason for setting it aside. We have so held with respect to inconsistency between verdicts on separate charges against one defendant, Dunn v. United States,
Price relies on an exception to this general rule: the rule of consistency in conspiracy cases. Although the rule has deep common law roots (see, e.g., United States v. Espinosa-Cerpa (5th Cir.1980)
After People v. James, supra,
The United States Supreme Court has never clearly spoken on this precise question. Defendant cites three high court decisions that his claims havе recognized the rule of consistency, but none even mention it. Two of the cases merely state that it takes at least two to conspire. (Morrison v. California, supra,
In the last two decades, the trend has turned against the rule of consistency, largely due to high court decisions involving inconsistent verdicts generally. In Standefer v. United States (1980)
A year after Standefer, the court upheld inconsistent verdicts by a trial judge sitting without a jury. (Harris v. Rivera, supra,
The Powell court also noted "that a criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt. [Citations.] This review should be independent of the jury's determination that evidence on another count was insufficient. The Government must convince the jury with its proof, and must also satisfy the courts that given this proof the jury could rationally have reached a verdict of guilt beyond a reasonable doubt. We do not believe that further safeguards against jury irrationality are necessary." (Powell, supra,
In the wake of these decisions, numerous federal courts have reconsidered and rejected the rule of consistency. (U.S. v. Acosta (2d Cir.1994)
We too believe the rule of consistency should be reconsidered. The general rationale behind the rule has been "that one may not conspire with himself." (People v. James, supra,
Our criminal justice system, which permits a conviction only if the jury unanimously finds beyond a reasonable doubt that a defendant is guilty of the particular charge, gives the defendant the benefit of the doubt. Moreover, a jury clearly has the unreviewable power, if not the right, to acquit whatever the evidence. An inevitable result of this system, and one that society accepts in its quest to avoid convicting the innocent, is that some criminal defendants who are guilty will be found not guilty. This circumstance does not, however, mean that if one person receives lenient treatment from the system, all must. "[I]t is always possible for a jury to exercise lenity and acquit some of the defendants while convicting others who are in fact no more guilty, and when this happens the convicted defendants have no remedy. [Citations.] Such incongruities are built into the American system of criminal justice and can have no weight in our decision whether to reverse the denial of a new trial to the present defendants." (U.S. v. Williams (7th Cir.1996)
The historical basis for the rule also provides a "damning indictment of its continued use in our system." (United States v. Espinosa-Cerpa, supra,
Defendant argues that our decision in People v. Taylor, supra,
Price does not claim that any of his jury's verdicts, including the conspiracy conviction, lacks evidentiary support. Aсcordingly, the Court of Appeal correctly affirmed the conspiracy conviction even though it is logically inconsistent with Palmer's acquittal of that conspiracy. The same rule tolerating inconsistent verdicts also disposes of Price's additional argument that we must reverse the finding that he premeditated Humphries's attempted murder in light of the other jury's finding that Palmer did not premeditate that attempted murder. The Court of Appeal expressed doubt that the premeditation verdicts were actually inconsistent rather than merely different. Like the Court of Appeal, however, we need not decide the question, for even if we assume the verdicts were inconsistent, we will give effect to both for the reasons already stated.
III. Conclusion
We affirm the judgment of the Court of Appeal and disapprove People v. James, supra,
GEORGE, C.J., KENNARD, J., BAXTER, J., WERDEGAR, J., and BROWN, J., concur.
Concurring Opinion by MOSK, J.
I concur in the result.
This is an easy case that makes good law. If we are careful.
The first of two general scenarios for inconsistent verdicts is this: A single jury returns inconsistent verdicts either against a single defendant on multiple crimes (e.g., the jury finds the defendant not guilty of selling narcotics, but also finds him guilty of using a telephone to sell narcotics) or against multiple defendants fоr a single crime (e.g., the jury finds the first of two defendants not guilty of conspiring with the second, but also finds the second guilty of conspiring with the first).
Such inconsistency of verdicts necessarily entails error, albeit apparently not of federal constitutional dimension, on the part of the jury in question, according to decisions including United States v. Powell (1984)
The source of such error by a jury may evidently be found in mistake, compromise, or nullification. (See United States v. Powell, supra,
The second of two general scenarios for inconsistent verdicts is this: Multiple juries return inconsistent verdicts against multiple defendants for a single crime (e.g., one jury finds the first of two defendants not guilty of conspiring with the second, but another jury finds the second guilty of conspiring with the first). Such inconsistency does not necessarily entail error on the part of any of the juries in question. The source need be found in nothing more than the possibility that each drew differing inferences from differing evidence. But, inasmuch as mistake, compromise, and nullification cannot be ruled out entirely, neither can error.
As for the first general scenario for inconsistent verdicts, I agree that we should abandon the so-called rule of consistency, which requires virtually automatic reversal of an inconsistent conviction. It is true that, under this scenario, we know that error, arising from mistake, compromise, or nullification, tainted either the inconsistent acquittal or the inconsistent conviction. But we simply do not know whether error tainted the inconsistent conviction rather than the inconsistent acquittal. Lacking such knowledge, we should not reverse the inconsistent conviction automatically. Instead, we should attempt to determine whether error tainted the inconsistent conviction in fact. To find the answer, we must do something morenotwithstanding Powell and Dunnthan merely ask the question whether the evidence was sufficient for the inconsistent conviction. (See generally Muller, supra, 111 Harv. L.Rev. at pp. 812-820.) For what we learn from such an inquiry is only whether any rational jury, viewing the evidence in the light most favorable to the government, could have returned the verdict resulting in the inconsistent conviction. What we need to learn, by contrast, is whether the defendant's aсtual jury did in fact return the verdict in question out of mistake, compromise, or nullification. Of course, we cannot subjectively look into the mind of any individual juror. But we may objectively consider the circumstances under which all of the *22 jurors acted. Hence, the question that we should ask is whether the record on appeal presents such a picture of what transpired both inside of the courtroom, including the trial, and also outside of the courtroom, including the events that were the trial's subject, as to cause us to conclude that mistake, compromise, or nullification had a marginal effеct on the verdict resulting in the inconsistent conviction.
As for the second general scenario for inconsistent verdicts, I agree that we should abandon the rule of consistency with its requirement of virtually automatic reversal of an inconsistent conviction. A fortiori. For, under this scenario, we do not know whether error, arising from mistake, compromise, or nullification, tainted either the inconsistent acquittal or the inconsistent conviction or neither. But we also do not know that it did not. As stated, since we cannot rule out the source of error entirely, neither can we rule out error itself. Here, as above, we should ask whether the record on appeal presents such a picture of what transpired within and without the courtroom as to cause us to conclude that mistake, compromise, or nullification had a marginal effect on the verdict resulting in the inconsistent conviction.
The case at bar implicates the second general scenario for inconsistent verdicts. At the time of the crimes, Price was 29 years of age and Palmer was only 15. Palmer's jury returned a verdict finding him guilty of attempting to murder Humphries, and made a finding determining that the attempted murder was not willful, deliberate, and prеmeditated; it also returned a verdict finding him not guilty of conspiring to murder Showalter altogether with Price. Subsequently, Price's jury returned a verdict finding him guilty of attempting to murder Humphries, and made a finding, arguably inconsistent with Palmer's, determining that the attempted murder was indeed willful, deliberate, and premeditated; it also returned a verdict, surely inconsistent with Palmer's, finding him guilty of conspiring to murder Showalter altogether with Palmer. On Price's challenge, we should ask whether the record on appeal presents such a picture of what transpired within and without the courtroom as to cause us to conclude that mistake, compromise, or nullification had a marginal effect on the verdict resulting in the surely inconsistent conviction of conspiracy to murder Showalter or on the finding resulting in the arguably inconsistent determination that the attempted murder of Humphries was willful, deliberate, and premeditated. We would have to answer in the negative. The presence of overwhelming evidence that Price conspired to murder Showalter and that the attempted murder of Humphries was willful, deliberate, and premeditated would likely bar a conclusion that mistake, compromise, or nullification had a marginal effect on the verdict and finding adverse to Price. (See Muller, supra, 111 Harv. L.Rev. at p. 824.) Evidence there was. But it does not seem overwhelming. With that said, however, there is nothing in the record of appeal that would support a conclusion that mistake, compromise, or nullification had a marginal effect on the verdict and finding against Price. We could no doubt speculate about the matter. Speculation, however, is not enough. Were we to indulge nevertheless, we might conjecture not mistake or compromise, but only nullificationand then only in the form of lenity toward the much younger Palmer on the part of his jury as opposed to hostility toward the much older Price on the part of his.