*1 July S067104. No. 2000. PEOPLE,

THE Plaintiff and Respondent, al.,

CRUZ ALBERTO MENDOZA et Defendants and Appellants.

Counsel Court, Farber, for Defendant Supreme William D. under by appointment Mendoza. Cruz Alberto Appellant Court, Morse, for Defend- under Supreme David McNeil appointment ant and Raul Valle. Appellant

Daniel E. General, and Bill Lungren Williamson, Lockyer, Attorneys George General, Chief Assistant Bass, Ronald A. Attorney Assistant Gen- Attorney eral, Vance, M. Jr., Stan Helfman and General, John R. Deputy Attorneys Plaintiff and Respondent.

Opinion

CHIN, 1157,1 Under PenalCode section J. defendant is “[w]henever convicted of a crime .. . which is into distinguished the trier of degrees,” fact “must find the of the crime ... of which he is guilty. Upon determine, failure of the to so [trier of the crime fact] ...

which the defendant is shall be deemed to be guilty, of the lesser degree.” Here, we consider this section’s under the applicability circum- following stances: the prosecution’s theory trial is that the killing was committed during perpetration robbery which is first burglary, (§ murder as a matter of 189); (2) law the court instructs the properly to return either an murder; or a acquittal conviction of first jury returns conviction for but its verdict fails to specify murder’s circumstances, We conclude that degree. under these section 1157 does not because the apply defendant has not been “convicted of a crime . . . into distinguished within the degrees” of that meaning section. Thus, the conviction is not “deemed to be (§ of the lesser degree.” We therefore affirm the Court of Appeal’s judgment.

Facts 22, 1992, On the Marin September Grand returned County an indict- Jury ment accusing of, defendants Cruz Alberto Mendoza and Raul Antonio Valle crimes, other among in 187(A),” violation of Section second “[m]urder (§ 211), (§ and robbery 459). These burglary arose out of the charges of Novato, Pastor Dan killing The Lord’s Elledge Church in California. As circumstances for special sentencing the indictment purposes, also al- that defendants leged committed murder while were in they com- engaged 190.2, and mitting robbery (§ (a)(17).) subd. burglary.

After the trial court trials, defendants’ granted motion for separate prosecution its evidence presented defendants against to simultaneously defendants, As to separate juries. both murder prosecution’s only theory was that Valle and Mendoza shot and killed Pastor while Elledge burglariz- ing robbing (as Lord’s Church one in a robberies). series of church Under section committed all murder “in the of’ or perpetration robbery indicated, 1Unless otherwise statutory all further references are to the Penal Code. evidence, of After the close murder of the first degree.” “is

burglary instruction, of closing independently trials proceeded purposes and return the verdicts. of arguments,

A. Proceedings Mendoza defense, Mendoza, (and crimes with committing

In his who admitted other Valle, and did not without) he never entered The Lord’s Church maintained there, Pastor including of the crimes Valle committed any participate did for that Mendoza killing, In connection with the Elledge’s killing. charge form of criminal not contend the could convict him of or court homicide than first murder. Nor did he ask trial felony other offenses; to instruct on included his counsel that agreed lesser felony-murder because the had a first only prosecution presented case, for other of first degree instructions intent forms relating specific Thus, murder Mendoza’s counsel declined expressly were unnecessary. and delibera- instructions malice

request aforethought premeditation instructions, tion. At Mendoza’s other discussion of points during counsel his murder understanding only that the prosecution’s expressed murder. was first theory degree felony instructed

Consistent with these the trial court Mendoza’s proceedings, on first “The defendant is follows: jury only felony accused Count One having of the indictment of committed crime murder, a violation Penal Code 187. Every person Section who HO kills a human or com- unlawfully being attempted commission during murder, mission or crime violation robbery burglary definition, ftQ clarification, is one Section 187 Penal Code. For not the definition of it’s the one that only applies crime, facts of case. of the following In order such each prove R0 killed; elements must be A was human proved: being killing unlawful; and the occurred or commission killing during attempted of a commission of The unlawful human robbery burglary, killing [ft] *6 intentional, accidental, whether unintentional which occurs being, during or or bur- robbery commission commission of crime or attempted is had the murder of first when the glary, perpetrator specific intent to such The intent commit or commit crime. robbery specific flO and the or commission of such crime must burglary commission attempted a a be reasonable doubt. If a human is killed proved beyond being [^] in the or of the commission commission crimes person engaged attempted all who either committed robbery robbery or burglary, persons personally or are or or who aided and abetted the robbery burglary, guilty burglary, intentional, unintentional, or degree, murder in the first whether killing accidental. For a purposes determining whether person guilty in the murder first a defendant who does not an intent degree, form to aid and abet a in a or before a murder has occurred participant robbery burglary Thus, is not of murder [^¡ in first if a reasonable guilty degree. you have killer, doubt whether Defendant Mendoza was the actual not you may convict him of murder in the first unless prosecution proves a beyond reasonable doubt that he formed the intent to aid and abet in the before the robbery murder occurred. If find the defendant in this case you flO of murder in the first must then guilty degree, determine if one or more you of the [alleged] circumstances are true or not true.” special

The court also instruction: “In order to find the gave following murder, One, defendant of the crime of as in guilty Count must charged you that, first, be satisfied a reasonable doubt beyond crimes of and robbery Three, and, committed; second, in Counts Two and burglary, charged were crimes; and, third, the defendant aided and abetted such in co-principal such crime committed the crimes of or as robbery burglary charged Three; and, fourth, Counts and Two the crime of murder a natural and was of the commission of the crimes of probable consequence or bur- robbery as in Counts glary charged Two Three.” addition, on the “lesser of which the could instructing crime[s]” crimes,

convict Mendoza if it found him not guilty court charged did not mention form of criminal homicide other than first any degree felony instructions, murder. Consistent with these the verdict forms the court submitted to the did not give convict defendant of option second homicide. murder or other form of criminal any its to the

During closing argument reaffirmed its jury, prosecution focus on first “In order to find the only degree felony explaining: defendant of the crime of murder as this Count charged you [in] doubt, folks, must be satisfied a reasonable beyond following: ft[] committed, crimes of or . . . were that the defendant aided robbery burglary and abetted such crimes. I submit to aided and abetted you but [he] crimes, he as well in those in such crime actively participated co-principal committed, the crimes of or as II or III Counts robbery burglary charged Valle, with . . . and the crime of murder natural probable of the commission of the crimes of or consequence robbery burglary in Count II and III.” The further “Murder has charged prosecution explained: been defined for ... In this case it is the which occurred you. killing commission the commission ... of a or during attempted robbery It is a first the unlawful of a human killing where burglary. *7 intentional, whether unintentional or accidental occurs the being during or burglary. the crime of robbery an commission of attempted commission or had the the degree specific in the first when perpetrator And is murder So, if HQ or burglary. either the robbery to the crime of the intent commit a and Mr. Valle that Mr. Mendoza was burglary folks find perpetrating you a and that Pastor was Elledge a and/or robbery perpetrating burglary [was] crimes, is of first of those he guilty the commission killed during [then] to you murder. And that is what the submit proof degree felony in case.” a reasonable doubt shows beyond instructions,

As a to circumstances discussing transition special “Now, an instruction from separate then remarked: there’s prosecution discussed with felony just first murder which is murder that the evidence In asserted summing prosecution instruction.” up, of first degree a reasonable doubt that Mendoza was beyond “guilty proved he The because entered killing murder” in connection with Pastor Elledge’s a and a of that Lord’s Church “with intent perpetrate robbery burglary that Mendoza “legally church.” The concluded was insisting prosecution by Elledge.” murder Dan responsible felony “Your by

Mendoza’s counsel his argument telling jury: began closing is to decide whether Alberto Mendoza is of first job guilty 26th, [1Q case is about The Lord’s Church on . . . This not August 1992. Cerritos, Fairfield, San whether Mr. Mendoza is the robberies guilty He’s What it Jose San Rafael. admitted his for those crimes. you guilt about the main to make he is is decision will have is whether you guilty of the first at The Lord’s Church.” murder that in Novato charged all or Defense counsel also assertion that stressed prosecution’s “[i]t’s i.e., has “either nothing,” prosecution proven you [Mendoza] doubt, or he’s there this crime with reasonable doing beyond [Valle] “So, not defense has the District argued: counsel guilty.” summing up, Alberto Mendoza doubt of first Attorney proven beyond reasonable should murder? I that he has not.” Counsel concluded: “You say Mr. did Mendoza first murder. He The Lord’s acquit burglarize Church. He did not rob Daniel He did not kill Daniel He Elledge. Elledge. innocent of these crimes.” I, Mendoza the offense Count “guilty charged found wit, 187(a) murder in of Section of the Penal Code of

felony, violation aloud, the asked of California.” After the clerk read this verdict court State “ each or ‘no’ or not that was vote on juror your to indicate whether ‘yes’ answered, “Yes.” The clerk of murder first Each charge degree.” juror circumstances, findings then announced the true jury’s regarding special i.e., committed the defendant Alberto that Pastor murder “was Elledge’s *8 Mendoza while was in the commission of the crime of engaged rob- [he] and “in the bery” commission of the crime of in the second burglary degree.” Church, As to the other from the charges events The Lord’s arising clerk also read the verdicts on and jury’s guilty second burglary trial, At the robbery. found that Mendoza’s penalty phase should be life in penalty without rather than prison possibility parole, death. The trial court entered a Mendoza subsequently judgment against first murder and sentenced him in accordance with the jury’s finding. The Court of affirmed the Appeal judgment.

B. Valle Proceedings trial,

At Valle conceded his of all substantive but contested guilt charges Thus, circumstances special allegations. he admitted committed having (as first degree felony well as with Mendoza burglary robbery) However, at The Lord’s Church. he maintained Mendoza had fired the fatal contention, gunshots. Based on this Valle also that at the time of the argued murder, he lacked the mental a state mere must have for a true participant on the finding circumstances In he special allegations. making argument, murder, relied on evidence that at the time he suffered from posttrau- matic stress related to syndrome combat in El prior Salvador. experiences defense,

Consistent with the and Valle’s the trial prosecution’s theory court instructed Valle’s on first murder as follows: degree felony “The defendant is accused in Count One of the Indictment of having murder, committed the crime of a violation of Penal Code Section 187. ra who commission Every kills human person unlawfully being during or attempted commission of or robbery burglary, guilty of the crime of murder, [^Q in violation of Section 187 the Penal Code. In order to prove crime, First, such each of the elements must be a human following proved: killed; second, unlawful; third, was being killing killing occurred the commission or during commission of or attempted robbery intentional, The burglary, unlawful human whether killing being, ra accidental, unintentional or which occurs or at- commission during commission of the crime of or tempted is murder of the robbery burglary, first when the had the intent to commit such perpetrator specific [^Q crime. intent to commit and the com- specific robbery burglary mission or commission of such crime must be attempted beyond proved reasonable doubt. an order for accused to be of murder as an guilty [^] aider and abettor of a he must have formed the intent to burglary, encourage or facilitate the to or at the time the entered prior perpetrator perpetrator Lord’s [^Q Church with intent. For an accused to required specific [T]he be . . of. as an aider and abettor to a he must have robbery, *9 to during the or the or robbery prior formed intent to facilitate encourage If killed one by any of the a human is being the commission robbery, [f] or in the commission attempted of several commission engaged persons or either directly the of or all who robbery burglary, persons of crime crimes, or of the act such knowledge commit the with actively constituting crimes, the intent or of the of the and with unlawful purpose perpetrator the commission committing, encouraging facilitating of or purpose offenses, aids, or its or act advice encourages instigates by promotes, commission, the is of degree killing are of murder the first whether guilty intentional, unintentional, the or accidental. If find defendant you determine if one or this case of of the first must degree, you murder guilty are true or not true.” As more the circumstances [alleged] special trial, “lesser Mendoza’s the trial court’s instructions the crime[s]” the could if him not of the charged convict Valle it found guilty did form of crimes not mention either second murder or other degree any criminal homicide. after to the reading

During closing argument, prosecutor, again murder, the court’s stated: “It is clear from degree any instruction on first in this that the of first evidence case defendant interpretation guilty under he entered theory. Clearly murder this murder degree felony [The theft, he that his own Lord’s with intent to commit admitted Church] degree felony- doctors.” The also reiterated that the first prosecutor Which, “can accidental. murder rule to be unintentional or killing apply, defendant, in relation to the of the firearm by argue you discharge event, . he’s was not accidental. . . But in it’s clear that any guilty Later, . . . that he “not degree first murder .” prosecutor explained to find lesser included offenses.” The asking you guilty any [Valle] killer, closed that Valle “is actual by asserting responsible prosecutor of first murder of Dan and that circumstances degree Elledge, special that the first the commission of murder in committing degree during rebuttal, ...” again are true . In his burglary robbery prosecutor asserted that he had a reasonable doubt element beyond every proven issue of “the first murder on the murder felony theory.” that

Defense counsel her she would began closing argument by explaining time that . . . the has not prosecution, proven “spend any telling you robberies, felony their case and even the regard burglaries, with the difference between murder.” Counsel then focused attention on jury’s circumstances, and the explaining: first murder felony alleged special I at the circum- out is that when look you special want point “[W]hat stances, murder and the circum- special at first it appears felony murder felony stance are the same because find first you thing rule, murder or the if theory, felony involved in the you’re commis- accidental, sion of a in someone’s felony eyes, even if it’s it’s first flQ murder. And then turn to the you circumstance . . . .” She special later circumstance of explained special murder while committing engaged “ in a which must be considered robbery burglary, find Mr. Valle you ‘[i]f ” of murder in the first “looks a lot like degree,’ the vehicle which just to first got you which is the murder rule.” She later felony and then death repeated “robbery recognized resulting [under law] *10 the murder by felony rule. That’s how to first murder . . . .” you get counsel asked the concluding, to find the jury circumstances special true, allegations while she conceded that Valle was of . . . “guilty murder felony of Dan because he was in there when someone died. Elledge He was in a first participating murder felony robbery.”

After the court closing arguments, discussed verdict forms with coun- sel. Defense counsel that a began by asserting verdict form on the proposed contained “a mistake” charge because it was “a verdict form for and deliberate murder premeditated 187(a) under . . . .” Counsel [section] read, ‘Murder, that the form “should argued in violation of Section . . . in that the murder was committed while the defendant was in the engaged wit, commission of a and/or And that felony, robbery would be burglary.’ murder under felony 189.” In to the court’s that she reply request [section] counsel . explain proposal, “Because . . that’s the replied: theory case, about, that’s what we’ve talked that’s what’s been on . . . .” put Counsel continued: concern is with the “[M]y felony murder . . . language. that, wit, . . . I think what it should is . . . ‘to this murder say [U] committed the commission of a during that it’s clear felony,’ they’re finding [^Q . . . a murder based on murder . . . . felony There’s been so much mean, discussion about—I and the whole is that the murder theory is found killing commission of a happening during .... So I felony [^] think it should be clear to jurors] at the time that are they are—they [the with the verdict on dealing murder or not that it’s and that’s felony what exactly they’re finding.”

The to defense counsel’s a prosecution objected that proposal, asserting verdict form should never refer to “the “theories” of murder. theory” case, It also “In this there is one so there can’t be explained: theory, any is, confusion as to what it has to be in the commission of jury’s] finding [the a with the the court then denied felony.” Apparently agreeing prosecution, defendant’s form refer to the verdict request prosecution’s legal trial, As in Mendoza’s the verdict theory. forms court submitted to Valle’s did not to return verdict for second give option criminal murder or lesser form of homicide. any I, a Valle of the offense in Count charged felony, found “guilty wit, It also found him 187(a). murder in violation of Section . . circum- and found true the special

of second degree robbery burglary, he had committed the murder while committing stances allegations aloud, the clerk read these the court findings After robbery burglary. I, asked each “With to the verdict of Count juror: respect , murder, violation of Section 187 . . . was that finding guilty, your answered, . ?” Each “Yes.” At the individual verdict. . juror penalty phase trial, should be life in found Valle’s penalty prison trial court without rather than death. The subsequently possibility parole, murder and sentenced him entered Valle first judgment against in accordance with the The Court of affirmed jury’s finding. Appeal judgment.

Discussion The issue here construction of section proper first enacted as of the Penal Code of 1872. As part originally *11 enacted, section 1157 a crime “Whenever into provided: distinguished defendant, if convict the must find the degrees, jury, they 1951, crime of which he is In amended guilty.” Legislature language “[wjhenever to make the statute a defendant is of a crime convicted apply 1951, 1674, 109, (Stats. which is into . . . .” ch. distinguished degrees p. here, 3849.) As relevant has remained statutory language unchanged Thus, whether, since.2 the threshold we must consider under the question above, facts and circumstances we have set forth defendants were “convicted of a crime . . . which is into within the of distinguished degrees” meaning not, If 1157. were then the statute does not they apply.3

Our fundamental task in this determination is to ascertain the making Ultramar, (White intent so as to effectuate the v. Legislature’s law’s purpose. 563, 19, (1999) 944].) Inc. 21 Cal.4th 572 P.2d We 981 Cal.Rptr.2d [88 words, our them a begin statute’s inquiry by examining giving plain 469, (Garcia (1997) commonsense v. McCutchen 16 Cal.4th 476 meaning. 319, so, however, 906].) P.2d do not 940 In we Cal.Rptr.2d doing [66 consider the “in isolation.” v. statutory language (Lungren Deukmejian 727, 115, Rather, (1988) 45 299].) Cal.3d 735 755 P.2d Cal.Rptr. [248 look to “the entire substance of the statute ... order to determine 1978, (Stats. Legislature language referencing attempts 2In added to commit crimes. 1978, 1166, §4, 3771.) ch. asserting applies 3Justice Kennard “whenever a crime errs section 1157 is ‘distin- ” Kennard, amendment, J., guished (Dis. degrees.’ opn. post, into of Since its 1951 “[wjhenever applied by the statute has . . . its terms defendant is convicted a crime of 1157, (§ added.) distinguished degrees.” which is into italics 908 (West Pico .... Furniture

scope purpose provision [Citation.]” 594, 793, 2 (1970) Co. v. Finance Loans Cal.3d 608 Cal.Rptr. [86 Pacific “ is, context, 665].) That ‘in P.2d we construe words in question 469 the statute . . in mind nature and obvious . .’ purpose keeping (Ibid.) We “the of a must harmonize various parts statutory [Citation.]” in the enactment... clause or section context by considering particular (Moyer Comp.Appeals framework as whole.” v. Workmen’s statutory 222, 144, 1224]; see (1973) Bd. 10 Cal.3d P.2d also Cal.Rptr. 230 514 [110 315, 613, (1991) 323 Woods v. 53 Cal.3d 807 P.2d Young Cal.Rptr. [279 84, 455]; (1989) & Trust Cal.3d County Title Ins. Co. v. Riverside 48 91 670, 1148]; 767 Fair & Dyna-Med, Employment P.2d Inc. v. Cal.Rptr. [255 67, 1379, (1987) 43 743 Com. Cal.3d P.2d Housing Cal.Rptr. [241 1323].) must also a construction absurd We avoid that would produce which we did not intend. v. (People consequences, presume 234, 903, 1224]; P.2d (1995) Jenkins 10 Cal.4th Cal.Rptr.2d [40 (1987) 741 P.2d v. 43 Cal.3d 998-999 Cal.Rptr. [239 Jeffers 1127]; In re Head 42 Cal.3d Cal.Rptr. these defendants were not we conclude that Applying principles, a crime . . “convicted of . which is into within the distinguished degrees” and commonsense of section 1157. We plain meaning begin by considering California, the first felony nature murder. felony- rule “is a creature statute.” (People Dillon (Dillon).) 668 P.2d When prosecution 697] establishes that a defendant killed while one of felonies committing lists, *12 the statute the is deemed to be first section of “by operation killing 189 465; (Dillon, murder as a matter of law.” 34 Cal.3d see degree 476, “in (1912) 483 P. terms Rogers also v. 163 Cal. 189 People [126 143] [§ degree”].) makes ... a committed “murder first killing” during robbery Thus, murders; of as a matter of there are no such degrees law, for a or can burglary a conviction committed a killing during robbery murder. be a conviction first only degree murders can be of the first has several significant

That such only degree at trial. Where the evidence to a indisputably points consequences lists, in the of one of the felonies section 189 committed killing perpetration a is murder. (People verdict return first v. may degree guilty jury 671, 323, 355]; P.2d v. (1964) People Jeter 60 Cal.2d 675 388 Cal.Rptr. [36 447, 78, 46]; People P.2d v. (1962) 58 Cal.2d 453 375 Cal.Rptr. Lessard [25 circumstances, 502, 631].) these (1937) 8 Cal.2d 516 P.2d Under Perkins [66 “from the a court “is in justified withdrawing” question trial the defendant is either not guilty, guilty jury” instructing

909 566, P.2d (1956) murder. v. Riser 47 Cal.2d 581 (People first degree [305 other than first 1].) The trial court also need not instruct the on offenses jury of murder. murder or on the differences between felony degrees 371, 1]; (1953) P.2d v. Bernard People v. 41 Cal.2d 382 (People Rupp [260 207, (1946) 636].) 214 P.2d Nor need it CALJIC No. give 28 Cal.2d [169 8.70, “Murder is into two If should classified degrees. you provides: murder, and state in find the defendant must determine you your verdict whether find the murder to be of the first or second you degree.”4 720, 152, P.2d (1991) v. Morris 53 Cal.3d 211 807 (People Cal.Rptr. [279 949], (1995) Stansbury on another v. 9 Cal.4th ground People disapproved 824, 830, 394, 588].) fn. 1 P.2d Because the evidence 889 Cal.Rptr.2d [38 establishes as a matter of law that the murder is of the first these degree, a violate neither the under section 1126 to have right jury procedures 590, (1949) determine of fact v. 33 Cal.2d (People 595 questions Sanford 534]) P.2d nor the constitutional to have determine right every [203 (See material (1974) issue evidence v. Thornton People presents. 738, 769, 467, 267],

Cal.3d fn. 20 523 P.2d Cal.Rptr. disapproved [114 668, 684, (1979) another v. Flannel fn. 12 ground People 25 Cal.3d [160 84, if, circumstances, 1].) 603 P.2d under these Cal.Rptr. Finally, returns a verdict for a crime other than first the trial law, court must refuse to the verdict because it is and must accept contrary (Cf. direct to reconsider. Scott People 882],

561-562 348 P.2d on another Cal.Rptr. disapproved ground v. Morse Cal.2d 648-649 12 A.L.R.3d The Legislature clearly was aware of of these many principles it enacted when section 1157 in 1872. In Penal Code to proposing Legislature, California Code Commission in its note to explained where occurs commission of one of the killing during felonies, itself, listed “is the statute by answered question [y/c] have no but to find the in the first option prisoner guilty degree. Hence, ... all as to the removed difficulty question foil., Code, (Code (1st statute.” commrs. note Ann. Pen. ed. Burch, here, Where, commrs.-annotators) “a &

Haymond statute the California for inclusion in the Code Commission proposed by *13 Penal Code of 1872 enacted the without substantial by [was] the of the commission is entitled to change, construing report great weight the statute and in the intent of the determining Legislature. [Citation.]” Wiley (1976) 554 P.2d {People {Wiley).) 881] principles, part: 4Consistent with these the Use Note to CALJIC No. 8.70 states in “If the only theory degree felony-murder, give supported of murder the evidence is first do not (Use (6th 1996) 456.) p.

this instruction.” Note to CALJIC No. ed. 8.70 where, here, as the we conclude of these In light principles, and on first degree felony the only instructs jury trial court correctly murder, degree of first either not guilty defendant to find the law, circumstances, a matter of as Under these does not section 1157 apply. is first degree be convicted a defendant may only crime of which As to the degree not before the jury. is and the question Thus, a make. for the crime, jury determination is no there simply not, has under plain circumstances convicted under these defendant . of a crime . . been “convicted section meaning commonsense into degrees.”5 is distinguished which of statutory would violate several principles construction A contrary statute, First, the obvious purpose it would ignore

interpretation. permissible, than a verdict other is to ensure where first 1157 where jury section is clear. Applying determination of degree the jury’s conviction felony-murder a first degree only instructions correctly permit statutory to further this purpose.6 do nothing would 1157 in conflict

Second, would place construction contrary in- jury regarding with the (rather applicable principles than in harmony) the evidence points indisputably verdicts where structions permissible lists, and that section 189 felony committed while perpetrating a killing argued by the only theory or theories on “the establishing depends a rule that 5We are not Mosk, J., by the 928) presented (dis. or “the evidence post, p. at opn. of prosecution” Rather, J., Kennard, 938.) we hold that section (Dis. post, p. at opn. of prosecution.” permit jury correctly given do not actually and jury instructions apply does not where Moreover, degree. the cases the first other than of return a murder conviction to consider or jury not, attempt “to discover what suggests, involve an Kennard us do as Justice before Kennard, (Dis. charged” opn. of crime actually decided as to unspokenly but Rather, 934.) (fid. p.at J., 933) jury found.” degree of crime post, p. or “to divine what at instructions, where, had no proper under they involve a situation explained, make. decision to statutory purposes further the under these circumstances section 1157 applying 6Nor would the elements jury only properly instructs the trial court put forth. Where the dissenters beyond a every those elements it finds one of convict if degree murder and to of first (Dis. opn. of doubt, to “avoid.” “uncertainty" jury’s in the verdict there no reasonable returning has not Mosk, J., a conviction 926.) danger that a There also is no post, p.at Kennard, J., (Dis. opn. of the crime.” constituting higher all the elements “found evidence, J., 939.) 930; on the post, p.at Based Werdegar, opn. dis. post, p.at see also instructions, degree murder entered first promptly here the trial court arguments, and its Thus, admin- “promote . . . would not applying section 1157 against defendants. judgments Mosk, J., 926.) do under post, p. All it would (Dis. efficiency.” opn. of istrative though even degree murder convictions produce here is second circumstances Mosk Justice degree felony murder. Unlike guilty of first defendants unquestionably found legislative intent to Kennard, would further see how this result we fail to and Justice (Dis. Mosk, J., 926) opn. of justice. or “advance” (dis. post, at opn. of justice” “promote reducing Valle’s conviction J., agrees that Kennard, 933.) Werdegar Justice post, J., post, (Dis. Werdegar, opn. of murderer.” result for this just “is not a degree murder second p.at

911 idle acts. “do to the does not require would violence law principle 153, Code, (1948) Cal.2d 164 (Civ. 3532.)” (Webber v. Webber 33 [199 § 1195, 934]; (1991) 53 Cal.3d 1240 Sully P.2d see also v. People [283 144, idle to statute to [refusing “require 812 P.2d interpret Cal.Rptr. 163] as a acts”].) As we such murders are of first degree have explained, law, find a the trial court instructs the jury matter of and where properly murder, defendant either not or of first there is guilty simply determination no to make. a construction would absurd and results. contrary unjust

Finally, produce outset, noted at the failure” As we where section 1157 applies, “[u]pon of the fact finder to determine “the crime ... of which degree, the defendant shall be deemed to be of lesser guilty, degree.” added section 1157 1949 Legislature provision change a declared rule that failure to determine entitled a defendant judicially 56, (Marks) (1991) to a trial. (People new v. Court 1 Cal.4th 73 Superior [2 389, 800, 1, 1949, (Marks II); P.2d ch. 820 Stats. Cal.Rptr.2d 613] § where, instructions, 1537.) The result of it under correct a may applying a convict defendant of first murder would be both absurd degree felony unreasonable, a for it would courts to deem conviction to be of require a that was never issue that was neither asked nor here, concedes, to consider. For as defendant Valle it permitted example, would convicted crime the crime lesser than being “result[] [his] fact, which the evidence him to be showed lesser crime than guilty—in crime which his at trial conceded he was This result attorney guilty.” “ would be “neither nor fair” and would ‘form just permit triumph[] [to] ” 999, (1996) over substance.’ v. Escobar 48 1027 (People Cal.App.4th [55 (Escobar).) law traduced.” Cal.Rptr.2d (People 883] “[T]he [would be] 281, (1983) Johns 145 Because Cal.App.3d CaLRptr. [193 “[w]e can think of no could have desired” this why Legislature explanation result, absurd and we construction that would unjust reject statutory (1993) it. (People v. Broussard 5 Cal.4th produce Cal.Rptr.2d [22 Code, (Broussard) 13967]; 856 P.2d also Gov. see [construing 1134] § v. Dixon 752] results”]; In re construction of 1157 would lead “absurd [rejecting Cal. P. results Haines unjust 883] [“[a]bsurd Thus, be will never ascribed to the conclude when legislature”].) amended section and intended that 1157 in believed the statute under would where conviction apply only permissible a defendant instructions is first because degree felony proper *15 912 a crime . . . “convicted of has not been under these circumstances

convicted into degrees.”7 which is distinguished on our defendants rely primarily for a contrary interpretation, arguing 236, McDonald 37 Cal.3d 351 v. Cal.Rptr.

decision in There, (McDonald). the defendant stood A.L.R.4th P.2d 1011] that he allegation circumstance a murder with charge, special trial on (Id. at the victim. to rob while robbing attempting committed the murder “ ‘guilty the defendant finding a verdict 355.) The returned p. Code, charged Penal a felony, of Section 187 in Violation Murder, ” omitted.) also (Id. italics at I of the information.’ p. Count (Id. 355.) be true. at p. allegation found the robbery special-circumstance conviction, erred in court that the trial prejudicially holding We reversed affect factors that may regarding testimony psychological excluding expert (Id. 361-377.) at identification. pp. of an the accuracy eyewitness with the crimes contentions dealing turned to “address certain We then (McDonald, supra, . . . retrial.” be on defendant may prosecuted defendant’s assertion was the 377.) those contentions Among Cal.3d at p. in its verdict of murder the degree that “the failure jury’s specify under of law” murder by operation second degree his conviction render[ed] 379.) noted that this (McDonald, at We p. section 1157. form,” but factual arise on retrial in this precise “not likely issue was i.e., double jeopardy implications, the issue because of possible discussed be barred. might a crime than second greater that retrial for (Ibid.) Kennard Mosk and Justice statutory interpretation of Justice principal basis for the 7The to be a murder conviction unjust nor to deem that it is neither absurd appears to be their view degree murder only a first permit instructions that degree despite proper jury of the second degree felony murder. first that he committed despite a defendant’s concession conviction and Otherwise, J., 926; Kennard, 934.) Mosk, J., post, p. at (Dis. opn. of post, p.at dis. opn. of notwithstanding belief that it is their of section 1157 they adopt our construction could 927; Mosk, J., (Dis. post, opn. dis. p.at language.” opn. of “contrary “plain the statute’s to” court, Kennard, J., has stated that 932.) Justice Mosk Writing for a unanimous post, p.at “ ‘ meaning doing so would result given a if not be literal statutory language “should ’ (Younger Supe- Legislature did not intend.” consequences [Citations.]” which the absurd writing for Also 113 [145 Cal.3d rior Court not be court, meaning a statute should plain “the has stated that Justice Kennard (Broussard, supra, 5 results.’ [Citations.]” lead to ‘absurd to do so would followed when letter, circumstances, and the letter over the prevails intent ‘[t]he at “In such CalAth (Id. pp. at will, the act.’ spirit [Citations.]” to the so read as to conform possible, if be (dis. language” “plain 1157’s 1071-1072.) disagree their of section Although with view Kennard, J., 937), 927; our Mosk, J., post, pp. opn. dis. post, opn. of Broussard; the letter of Younger it conforms with consistent conclusion is nevertheless deeming a consequence of avoids the absurd spirit and statutory language to the statute’s instructions, when, it could under correct to be of the second murder conviction hand, produce would on the other interpretation, degree. The dissenters’ have been of the first they without, furthering purposes discuss. explained, as we have consequence this absurd to the defendant’s contention under section the Attor-

Responding General that “because the instructed ney argued part solely *16 first could be verdict of on the degree any guilt charge only in the first was instructed that before it could return a degree. jury verdict of on the murder it must on whether guilt charge, unanimously agree Thus, defendant was of murder of the first ... guilty degree. jury’s verdict of of murder ‘as constituted an charged’ finding implied (McDonald, 382.) first murder.” at degree supra, 37 Cal.3d p.

We this “no reason this in the rejected argument, finding variation why (McDonald, facts should lead to a different result.” 37 Cal.3d at supra, p. 382.) Cal. first Quoting People Campbell we (Campbell), that “the terms of the statute are No opined unambiguous. special exception case; created for the situation this had the chosen presented by to make section 1157 to cases which was instructed inapplicable jury crime, on one of a it degree could have so The statute easily provided. that ‘if requires shall find the jury defendant the verdict shall guilty, of murder .... It specify degree establishes a rule to which there is to be no and the Courts have exception, no to create an authority exception when the statute (McDonald, makes none.’ supra, 37 Cal.3d at p. [Citation.]” 382.)

We then stated that of the “prior [judicial] statute no applications suggest rationale for this case from the of section excepting language 1157.” plain (McDonald, supra, 382.) 37 Cal.3d at to p. Again turning Campbell, continued: court in similar Campbell was faced with a dilemma to “[T]his that which asserts exists in the Attorney case. In present [the General] Campbell, claimed that because the facts in the indictment alleged would a conviction of first support only and not of second degree degree murder, the failure of the to jury did not reversal. specify degree require contention, The court rejected that stating ‘We have no to right disregard statute, laws, of the positive requirement as it is not our to make province but to (40 expound 138.) them.’ Cal. at p. interpreting statutory which then provision (rather than the required jury ‘designate’ crime, ‘find’) current term equivalent of the the court stated: ‘The word “designate,” as here does not that it will be sufficient employed, imply for the to jury intimate or some hint to the give vague as of murder of which the defendant is found but it is to the words guilty; equivalent “declare,” “express” it was intended that the should evidently state the expressly murder in the verdict so that should be nothing left to on that . . . letter of the statute . . . implication point. very [T]he words, or in requires other or declare “designate,” express their crime. verdict the at However absurd it the first may, crime,

blush, the to be to require designate appear has the face that the offense charged when indictment appears and, for this but one there are sound reasons very degree, plausible perhaps, reasons this enact- . . . But whatever have been the may requirement. ment, and it it is for the to know the law is so sufficient Courts written (Id. (McDonald, it.’ 139-140.)” supra, is their to enforce duty pp. Attorney Cal.3d at Based on McDonald stated that the Campbell, General’s case on basis “attempt distinguish present th[e] [of fail, of law must therefore and it must be deemed a matter instructions] (Mc- convicted murder. defendant was of second degree [Citation.]” Donald, omitted.) fn. *17 reexamination,

On we conclude that we should not follow McDonald’s cases, and in the present discussion of section 1157 under the circumstances McDonald, 351, the extent it inconsistent supra, we overrule 37 Cal.3d to first of section with We observe McDonald’s discussion opinion. to As we 1157 was not that case’s resolution. have necessary previously noted, court the defendant’s because the trial reversing conviction although went on to discuss excluded McDonald erroneously expert testimony, on section considerations” 1157 issue because of “double possible jeopardy However, (McDonald, 379.) retrial. at after supra, stating p. 1157, to

under deemed be of the second section murder conviction was to for three reasons we declined consider whether double degree, jeopardy “First, on has not barred retrial first murder. question principles . . . immediately been raised and its answer not obvious. by parties, Second, unless the the issue will not be on retrial prosecution presented flO But theory seeks a first murder conviction. sole prosecution’s murder; first murder at trial felony given jury’s acquittal and thus its on acquittal attempted defendant on the robbery charge implied to If be hard an felony. robbery, may put prove underlying prosecution of second limits itself to a maximum charge prosecution retrial, as a will not arise. manifestly Finally, on the double issue jeopardy rule, enter a of double the burden is on the. defendant to general plea and to a basis for the plea.” at the time jeopardy appropriate present 383-384, 31.) Given the reversal (McDonald, 37 Cal.3d at fn. supra, pp. the double failure raise the conviction on another ground, parties’ retrial, issue, arise it was and the the issue not on likelihood would jeopardy (See Marks section application. in McDonald to discuss 1157’s necessary court II, trial concluding fn. from 1 Cal.4th supra, [“[a]part error, ‘necessary of law was committed reversible no other determination ” decision,’ that “would become ripe double issue including jeopardy the higher for if and when the prosecution attempts] reprosecute only of once and the defendant the bar jeopardy”].) offense raise[s] . A decision “is not said in the . . authority everything opinion but ‘for the involved decided.’ only points actually actually [Citations.]” (Santisas v. Goodin 17 Cal.4th Cal.Rptr.2d 399].) P.2d the ratio decidendi of an has “[O]nly opinion prece- appellate effect .” dential . . . 11 Cal.4th (Trope [citation] Katz Thus, “we must view with caution Cal.Rptr.2d directives not essential to earlier decisions and be seemingly categorical this dictum extent it remains guided by analytically persuasive.” II, (Marks 1 Cal.4th at reasons,

For several we do not find McDonald's dictum analytically from it persuasive. Principally, relying heavily Campbell quoting McDonald failed to consider that did not construe extensively, Campbell section but construed a statute with language. Camp- different different bell construed section 1157’s section 21 the Act predecessor, Concerning (Act 21). Crimes and Punishments 40 Cal. (Campbell, supra, pp. 137-138.) After murder in the first and second that section defining degrees, in relevant before provided whom indicted for part: any person “[T]he tried, shall, thereof, murder shall be if find such they designate person verdict, their it be (Stats. whether murder of the first or second degree.” *18 1856, 139, 2, 219.) ch. As is Act section 21 did not p. readily apparent, § contain the of section are qualifying 1157 we now language construing: “Whenever defendant is convicted of a crime . . . which is distinguished Rather, into without degrees.” qualification, Act section 21 imposed duty make a on every a case in which finding jury hearing “any person” 1856, 139, 2, Thus, (Stats. 219.) was “indicted for murder.” ch. p. Camp- § bell “cannot be as for the regarded construction of authority proper quite different code section enacted in 1872.” v. Valentine 28 (People 121, Yet, Cal.2d (Valentine) 192].) 144 P.2d in [construing basing [169 1] § its discussion of section 1157 failed to Campbell, McDonald exclusively consider, or even the difference in between section acknowledge, language 1157 and Act section 21. It also failed to examine section 1157’s actually or consider its and commonsense language plain meaning.

Indeed, the relevant of legislative history suggests replacement Act section 21 with section 1157 was a direct legislative response statute. The enacted Campbell's reading section 1157 prior Legislature 1872, so, in two after we decided In it deleted years Campbell. doing the whom indicted for murder shall be very language—“before any person tried”—on which focused in that Act section 21 re- Campbell concluding all without the of a murder quired juries, exception, designate this (See 138.) conviction. at When it made supra, 40 Cal. Campbell, p. the knew of section 1157 change, Legislature clearly Campbell; proposing included an explanatory to the Code Commission California Legislature, commrs., foil., Ann. (Code note Pen. note referencing Campbell. expressly 1157, 404-405; Code, 162 at see also 18 Cal.3d Wiley,supra, supra, pp. rule, statutes, 171.) As a construing presume general “[w]e alters law it meaning intends to when change Legislature [citation], when it deletes express provi- statutory language example (1991) 53 Cal.3d (Dix version Court Superior sions of prior [citation].” Valentine, 834, 442, this applied 807 P.2d Cal.Rptr. 461 [279 192, the context of section another section rule in construing statute, Code, of’ a “together that “the with holding prior Penal repeal limitation of a new law on the same with subject important enactment deleted, [an] intended” to law. change strongly suggests Legislature (Valentine, Similarly, Legislature’s supra, 21, a new statute on Act section with its enactment of together repeal 1157—with differences significant language, the same subject—section Indeed, here, intended to the law. change strongly suggests Legislature construction, and the knew of Legislature Campbell’s statutory because construction, to” that the inference omitted word or “was phrase significant (Dix, Cal.3d at p. altered intent “is compelling.” particularly Palos Assn. v. Palos (d)]; Faculty subd. see also Verdes [construing § (1978) 21 Peninsula Sch. Dist. Cal.3d 659-661 Verdes Unified 1155]; Realty Pav. v. Whittell Co. Oakland Co. on which P. court language 185 Cal. 1058] [deletion clear of the legislative “is a indication based its statutory interpretation Thus, law].) that in substantially revising to change appears purpose” section when it enacted language the relevant McDonald, law. change and intended to Campbell

responding language the difference in followed without Campbell recognizing even 1157 and Act section did not consider possibility.8 *19 Moreover, or consider the acknowledge because McDonald failed it that difference in also failed to recognize statutory language, significant legislative history the disagree suggestion with Justice that as section 8We Mosk’s the Revision of Laws to statute “evinces the intent of Commission for of the 1872 ’ Mosk, J., 926.) (Dis. post, p.at existing opn. and law.” of ‘preservfe] ‘spirit substance’ of assertion, quotes the to the 1872 Penal Code. making partially preface Mosk this Justice Mosk, J., However, (dis. p. acknowledges opn. post, at fn. Mosk of as Justice elsewhere “ existing 1), actually many full: of quoted states in ‘While sections partially sentence clearness, give and their precision and to them redrawn to correct verbal errors laws have been ” commrs., Preface, have, cases, (Code Ann. Pen. preserved.’ been spirit and substance all terms, vi., Code, added.) describe the fate By this sentence does not supra, p. at italics its “ ” Indeed, sections, {Ibid.) only only two existing ‘many.’ all of the new code of under “ introduced, later, but these ‘Many new sections have been the Preface states: sentences also existing legislation give completeness of necessary “supply the of and to the defects were 1157 and Act {Ibid.) significant linguistic between section differences the State.”’” ” “ category latter ‘new sections’ within this 21 indicate that section 1157 falls section ’ “ ‘ ”; existing legislation of the State” completeness “supply give the defects of the focus of is not relevant to section 1157’s construc- Campbell’s analysis noted, tion. As under Act 21 to section jury’s duty designate (Stats. of murder conviction extended to indicted murder.” “any person 139, 2, ch. added.) italics Gener- p. Accordingly, Attorney al’s and our focused argument statutory analysis Campbell exclusively 137-141.) indictment. at the lan- (Campbell, supra, Cal. Given pp. consider, of Act section we had no reason to our guage discussion mention, did not whether the trial court instructed the that the defendant contrast, could be convicted first murder. such an degree felony By instruction is much relevant in whether a defendant has very determining been “convicted of a crime . . . which is into within distinguished degrees” meaning section 1157. In McDonald did simply following Campbell, not consider this distinction.

Nor did McDonald consider that the under Act section 21 of consequence failure to jury’s designate crime’s was different significantly from the under section consequence 1157. In Campbell, failure in jury’s this entitled the regard defendant to reversal of the and a judgment new trial. contrast, (Campbell, 141.) 40 Cal. at supra, section 1157 p. By specifies determination, failure upon jury’s to make the required crime’s degree “shall be deemed to be of the lesser As we have degree.” already explained, where, here, as the only conviction legally permissible under instructions is first degree felony of this application provision absurd and produces results. unjust By to consider this Mc- failing point, Donald failed to recognize context in which Act section 21 operated different from that significantly in which section 1157 As we operates. have also context already explained, is important construing statutory language.9 “ ” “ ” merely section 1157 did not ‘correct give ‘precision verbal errors’ in or and clearness’ commrs., (Code Preface, Code, to Act section vi.) 21. Ann. Pen. 9None of the support authorities Justice Kennard cites her assertion that we interpret “must” Campbell Kennard, J., interpreted (Dis. 1157 as Act section 21. opn. post, Code, Section 5 provisions they states: “The substantially so as are the same far statutes, thereof, existing must be construed as continuations and not as new enactments.” (Italics added.) because, inapplicable It is explained, as we have language section 1157’s substantially same as that of Act section 21. v. Ellis 204 Cal. (Ellis) reason; inapplicable P. expressly 518] for the same invoked the rule of “ ” statutory applies provisions construction that readopted (Cf. where are change.’ ‘without *20 People (1970) v. St. Martin 1 Cal.3d Cal.Rptr. [refusing 463 P.2d [83 to 390] “ ” apply “reenactment rule” where reenacted statute did language’ not the same as the ‘use[] one].) not, prior did suggests, Ellis as Justice Kennard that the 1872 Penal Code “conclud[e]” Kennard, J., statute there at “significant changes (Dis. issue contained wording.” opn. in of 937.) post, p. People 293], at v. Travers 73 Cal. P. not cite [15 does section only 5 and states that the “may guide” construction of Act section 21 section 1157’s Moreover, construction. Campbell its discussion single of was limited to a descriptive matters the given McDonald’s failure to consider these is not surprising, in General’s contentions in that case. The General Mc- Attorney Attorney did not the instructions convic- Donald that because argue permitted of a of first the defendant was not “convicted crime degree tion only the of section meaning . . . which is into within distinguished degrees” was the statute was and a determination unnec- degree inapplicable, Rather, the instruc- General that in of argued light essary. Attorney tions, of murder constituted an charged’ “the verdict of ‘as jury’s guilty (McDonald, of first murder.” 37 Cal.3d at supra, finding degree implied Thus, the in McDonald conceded the statute’s 382.) Attorney General appli- under but that its had been satisfied argued cability, requirements circumstances. v. in Bonillas 48 Cal.3d 757

Notably, People (Bonillas), cited similar considerations in deem refusing 111 P.2d we 844] of section 1157’s construction. Bon- McDonald another binding question held that a a sufficient under section 1157 degree finding illas made court returned a silent as but the next initially day where it verdict degree of first the defendant finding returned a verdict supplemental (Bonillas, 768-770.) As for a supra, authority murder. 48 Cal.3d pp. McDonald, conclusion, which re- the defendant in Bonillas cited contrary in a verdict fused to effect an give express finding supplemental after verdict. original made more than three weeks returning the jury Bonillas, 379-382.) did not (McDonald, 37 Cal.3d at we follow supra, pp. issue, on this analysis argument McDonald’s explaining: “[T]he its verdict was jury’s in McDonald was not completing People that a of first murder could be inferred but jury ‘finding’ proper did in not that court’s argue . . . . Not McDonald People [f] in to have the its verdict was appears attempt jury complete proper, Thus, not. conceded it was propriety McDonald [Citation.] not It the verdict was in issue McDonald. complete placed the attempt [(1959) People Hughes true that in portion opinion discussing is 679]], there some McDonald language 171 Cal.App.2d failed to but that give to bear on the question, language appears in McDonald and to the distinction between the situation critical recognition (Bonillas, circumstances in . . . .” Hughes pp. 775-776.) General Mc- have already Attorney

Similarly, explained, instructions, did not that in argue light Donald sentence, because the verdict did simply Campbell judgment “reversed [a] noted Also, {Travers, supra, 73 Cal. at Travers designate the the crime.” not only where the legislative applicable amendments made it construed section before distinguished specified degrees” into crime . . . which defendant is “convicted finding. Finally, Travers did consider jury’s of a failure to make a consequence us. question now before

919 crime because defendant not of a . . which “convicted . inapplicable section As we is into within the of 1157. distinguished degrees” meaning “critical have also McDonald's discussion failed to explained, recognize (Bonillas, 776) supra, distinction” 48 Cal.3d between p. language Thus, Act section 21 and section 1157. considerations we cited analytical in in control- Bonillas McDonald’s discussion of section 1157 “not finding 775) (Bonillas, 48 Cal.3d at to McDonald's ling” supra, equally apply of the discussion section 1157 issue now before us. McDonald's failure in consider the matters we have discussed following Campbell's application of Act section 21 its 1157. undermines discussion significantly Co., (See v. Realty Oakland Pav. Whittell 185 Cal. at p. Co. 119 supra, to follow under followed decisions rendered [refusing opinions “simply statutes” previous without in considering changes statutory language].) We defendants’ that we not reconsider reject argument McDonald may “ because the has in Legislature that decision. ‘We are here acquiesced not faced with situation which the Legislature in has an adopted established judicial interpretation (Italics added.) reenactment of a statute.’ by repeated The has neither reenacted amended Legislature nor nor rewritten [Citations.] lawmakers, any since portion decided [section 1157] [we McDonald]. short, in have simply spoken subject during intervening years.” (People Daniels 1128 “Thus, (Daniels).) A.L.R.3d although 677] has not [McDonald], affirmatively disapproved analysis neither has [our] or endorsed expressly it. ... we are free to impliedly Accordingly, [decision], our reexamine earlier v. Escobar (People [Citations.]” Indeed, Cal.4th 837 P.2d Cal.Rptr.2d as Justice Daniels, Mosk wrote for the court choose “while thus Legislature may silent, to remain not. It continues be our to decide each case may duty us; that comes before so we must statute case doing, every in the apply intent; to our best in the according understanding legislative absence of further should guidance by Legislature, we not hesitate our reconsider construction of that intent such a prior whenever course dictated of time and . . . the role teachings experience. Respect in our less.” judiciary tripartite system government demands no (Daniels, Cal.2d consideration, to the cite contrary, defendants arguing Legislature’s amendments section 1157. As introduced in rejection, proposed (1989-1990 Sess.)

March Senate No. Reg. Bill would have amended section 1157 to that when a fails to provide determine degree, crime’s instead of the crime to be of the lesser “the deeming degree, trial court an court fix the ... if it able to appellate may *22 920 the same case the the degree jury from other findings

determine jury made, the be timely to If this determination cannot intended fix. [on motion] to determine . to a before a new hearing jury shall be entitled . . defendant Sess.) 1.) (Sen. (1989-1990 Reg. . No. § the . . .” Bill 2572 degree to 1157 and the amendment section later dropped proposed “the of to specify degree a bill that amended section 1164 ultimately passed court, the the jury, as trial before discharging the crime” one issues 800, 1, ch. (Stats. on the record the has determined. jury § must verify 3548.) As section 1157. amending In the considered Legislature again 1998 introduced, Sess.) would have (1997-1998 No. 2402 Reg. Bill Assembly the the defend- crime made section 1157 whenever “inapplicable [of (Assem. of law.” Bill No. is of the as matter degree ant is higher convicted] Sess.) have added two new It also would (1997-1998 2402 Reg. § (1) “The failure to make degree] [a subdivisions to section providing: admitted the from determined degree being shall not finding prevent instrument, evidence, instructions or other given, jury the charging to the degree the event the fails ... record that made. In were findings discretion, , at the level higher . . court in its set the may, degree . the to a determination. and evidence such where there clear reliable support the the the and reasons for setting The court shall set forth on record facts determined, level”; (2) be then and “If the cannot degree degree higher court, discretion, the lower level either set may degree its trial, shall be the determination of a new the sole issue which order (1997-1998 Sess.) 1.) An amended (Assem. Bill Reg. No. degree.” (1) “shall only apply bill section 1157 version provided: “If of fact has a choice as to degree”; situation where the finder is a degree defendant was convicted specified the crime ... for which the , law, . . to determine the . as the failure of the upon a matter whether determining specified. the court fixmay law, the court refer may as a matter of the offense is specified document, contained in charging substantive definitions descriptive form, fact in the was factual contained verdict any finding fact not lesser or the degree, any instructed on specified only Amend, (Assem. of the case.” theory instructed one that the jury 29, 1998.) After Sess.) (1997-1998 No. 2402 Reg. Apr. to Assem. Bill Senate, the bill was sent where Assembly, amendment in the another it failed in committee.10 to amend failed attempts with defendants these

We do agree discussion of section 1157. us follow McDonald's require relating to Bill legislative materials Senate judicial notice of 10Defendants ask that take judicial (1989-1990 Sess.), Attorney asks that we take notice Reg. and the General No. 2572 court, As Justice has in a for this opinion Mosk written majority “ bills, intent, have value.’ legislative as evidences little ‘[ujnpassed Islay Investments Cal.4th (Granberry [Citations.]” (Granberry).) Contrary to defendants’ asser- Cal.Rptr.2d 970] *23 tion, and failure to enact the amendments in 1990 Legislature’s proposed when it 1998 about what intended” nothing Legislature “demonstrates are enacted section 1157 with the we now previously construing. language (Harry Agricultural Carian Sales v. Labor Relations Bd. (1985) Cal.3d 39 209, 688, 230 703 P.2d “At most it 27].) arguably Cal.Rptr. might [216 {Ibid.) reflect” intent in and But it Legislature’s 1990 1998. provides limited, intent, if even to that because very any, guidance Legisla- ture’s to failure enact a amendment indicate statutory may many proposed construction, than other of a things judicial statute’s approval including business, considerations, of other pressure or trust the political to tendency (Sierra Club San Joaquin courts to correct its own errors.11 Agency v. Local Formation Com. 489, 702, (1999) 21 Cal.4th 506 P.2d Cal.Rptr.2d 981 [87 Point, (Sierra Club); 721, Marina 735, Ltd. v. (1982) 30 Cal.3d 543] Wolfson 496, 115, fn. 7 640 P.2d 30 A.L.R.4th can Cal.Rptr. “We rarely [180 determine from failure of the to bill what the Legislature particular pass intent of the is with v. to law.”12 (Ingersoll Legislature respect existing relating Assembly (1997-1998 Sess.). similar materials Reg. grant 2402 We Bill No. unopposed requests. these 11Regardingthe legislation, Attorney 1998 report General cites a Senate committee that (1) proposed described the “essentially codif[ying]” amendment as of Appeal Court case, (2) opinion in reported Attorneys this the view of the California that Criminal Justice “unnecessary the amendment was since the of what do when the issue does not case,” currently (3) indicate in front of the Supreme Court with the Mendoza by asking (Sen. concluded issue Supreme whether the “is better resolved Court.” Com. Safety, (1997-1998 30, 1998, Rep. Sess.) Public on Assem. Bill No. Reg. pp. 2402 June 5-6.) Attorney The report proposal’s General finds “clear” from and the failure in the [L]egislature Senate looking committee “the to this Court to correct error” in its conclusion, Although adopt Attorney McDonald. we agree do not General’s we it is plausible. at least 12The reliance of attempts Justices Mosk Kennard on these failed amend section (dis. Mosk, J., 926-928; Kennard, J., 1157 opn. post, pp. at at opn. post, pp. dis. 934-935) cited, including is inconsistent with majority the decisions we have Justice Mosk’s opinion Granberry. in Justice contrary. cases Mosk cites do not hold to the DeVita v. 763, County (1995) 699, 1019], Napa Cal.Rptr.2d 9 Cal.4th P.2d 795 889 affirms that [38 “only (1997) limited unpassed People inferences can be drawn from” bills. Neither v. Ledesma 610, 1310], 16 Cal.Rptr.2d Cal.4th 90 People [65 939 P.2d nor v. Bauzas 1076], Rather, Cal.Rptr. 467 legislation. P.2d unpassed [279 807 involved reliance on both, statutory we invoked the rule applies Legislature construction that reenacts where Ledesma, changing supra, statute without judicial {People its construction. v. Cal.4th at 16 100-101; Bouzjas, pp. supra, 474.) citing v. 53 at we have explained, Cal.3d As Daniels, majority opinion Justice Mosk’s apply that rule does here not because Legislature has reenacted or amended 1157 since For this section we decided McDonald. reason, disagree Werdegar’s with Justice view that we must adhere to McDonald’s

922 1299], 743 P.2d fn. Cal.3d Palmer 1349 omitted.) amended section ultimately

That the Legislation a different conclusion. rather than section 1157 does not require McDonald, be placed would logically either expressly impliedly, adopting issue, (Cf. People not in section 1164. in section specific (King) King (1993) Cal.Rptr.2d 5 Cal.4th 27] 12022.5].) no reference McDonald’s Section 1164 contains [construing § is now connection between what Any discussion or even section 1157. an intent to codify is too to signal section 1164 and McDonald oblique (Cf. discussion. Cal.4th King, McDonald’s *24 that our of McDonald in decisions require Nor does treatment subsequent now before 1157 under the circumstances we follow its discussion of section 1157 in discussion of section irrelevant McDonald’s finding us. Recently, section, “In distinguishing stated: construction another Penal Code we decision!], or conclusions.” do comment reasoning we not upon [its] [this] 660, 698, 710, fn. 958 (1998) Cal.Rptr.2d Paul 18 Cal.4th 10 (People v. [76 discussed, And, considerations 412].) citing analytical P.2d previously here, refused in to follow McDonald’s similar to those that exist we Bonillas in under 1157 of degree findings section analysis adequacy regarding 774-776.) at More- (Bonillas, 48 Cal.3d supra, pp. verdicts. supplemental over, Bonillas, jury option in verdict forms gave supplemental Thus, 768.) unlike the murder. at p. either first or second finding {Id. cases, where the section 1157’s Bonillas did involve application present murder. As is first degree conviction on a only charge jury’s option said, an with opinion have often we must construe language we “ of a authority case ‘and the positive to the facts the reference presents, v. Kelly with such facts.’ decision is coextensive only {Brown [Citations.]”13 708, 711, 771 734-735 (1989) Cal.Rptr. Co. 48 Cal.3d Broadcasting P.2d in McDonald that reaffirmed” “unanimously

Defendant Valle asserts we case, v. Marks II earlier decision in the same Marks our 874, (Marks I). Valle is correct 756 P.2d 1335 45 Cal.3d 260] (Dis. opn. to” acquiesced “has it. “illogic[al]” interpretation because the 938, J., 939.) post, Werdegar, pp. 1224], under People v. Cal.Rptr.2d 892 Cain 10 Cal.4th 53-57 [40 13In Bonillas, supra, us, we followed that similar to those now before appear circumstances be to make a properly reconvened finding the trial court had Cal.3d that McDonald, so, supra, 37 Cal.3d considered nor doing degree finding. In we neither cited only the court instructs applies where question of whether section the threshold felony first murder. that those decisions cited McDonald in true stating jury’s despite on a circumstance under 1157 defendant’s finding special allegation, conviction was for second murder because failed to make a II, 73; I, (Marks 1 Cal.4th at Marks degree finding. supra, supra, p. However, whether, 1344.) neither Marks I nor Marks II states as in the p. cases, the trial court instructed the on first murder.

present only Nor did either decision reconsider or add McDonald's section 1157 Indeed, are as it relates the issue we now in Marks II analysis considering. that Marks Ts of section 1157 was not brief discussion explained “ ” decision,’ to the given our determination there trial ‘necessary II, court “committed reversible error” in another respect. supra, {Marks 6.) Cal.4th at fn. our We also explained “principal[] concem[]” sentence, Marks II not the of section 1157’s first meaning contains the we are now but language was “the construing, operation effect of second sentence which a crime deemed of the [section 1157’s] II, Thus, lesser degree.” supra, Cal.4th at fn. Marks I {Marks and Marks an //provide insufficient basis for McDonald's discus- following sion in the cases now before us.

We are also mindful that our Courts of have critical of Appeal been Escobar, McDonald and have to it adhered grudgingly. *25 1027, at the court

Cal.App.4th page described result McDonald requires “ ” “ as “neither nor fair” and a . just ‘form . . over sub- ‘triumph[]’ ” Nevertheless, stance.’ the court section 1157 on applied facts analogous those us before “under the (Escobar, of’ McDonald. compulsion 48 supra, 1026.) 747, at (1996) v. 47 Cal.App.4th p. People Dailey 749 Cal.App.4th case, 171], another the court Cal.Rptr.2d felony-murder [55 reluctantly McDonald, followed that concluding it was do otherwise “powerless” even section 1157 though applying might “reduce decades” sentences by The court also a imposed. discussed number of “troublesome of this aspects” result. v. 47 at re (People Dailey, 754.) In In Birdwell supra, p. Cal.App.4th 926, (1996) 244], 50 929 the court noted that Cal.App.4th Cal.Rptr.2d [58 Bonillas, rule has “criticized McDonald been for its And in inflexibility.” Justice wrote a Arguelles in which and concurring opinion, Eagleson Justices Kaufman that “the joined, described reluctance expressed by justices McDonald, our intermediate courts” to one appellate including who apply that be “urg[ed] (Bonillas, McDonald ... overruled. 48 supra, [Citation.]” 803, Cal.3d at (cone. J.).) fn. 3 p. opn. The concerns and Arguelles, comments of Courts of that have followed McDonald Appeal reluctantly 1, “should not (Landrum (1981) be v. Court ignored.” Superior 30 Cal.3d 325, 352]; 12 634 P.2d see 5 Cal.Rptr. King, also Cal.4th supra, [177 72-75, 77 criticism in pp. Courts of reexamin- [considering Appeal Indeed, and ing overruling even we have observed that under precedent].) 924 substance,

McDonald, and the law is over “on occasion ‘form triumphs II, 74.) (Marks 1 Cal.4th at supra, p. traduced’ . . . [citation] decisis us prevent conclude that the of stare does We also principle 1157. discussion of section these cases from McDonald’s reexamining and stability of the need for certainty, predictability, Because Club, law, 21 (Sierra supra, our we do not overturn lightly prior opinions. “ However, does not ‘shield court-created 503-504.) policy Cal.4th at pp. ” correction,’ us “to recon- but “is a flexible one” error from permits sider, from, in an our own prior precedent appro- and ultimately depart Ins. (Moradi-Shalal v. Fireman’s Fund Companies case.” priate 58]; King, supra, 758 P.2d see also Cal.3d [250 role of stare decisis 78.) determining consideration Cal.4th at A key p. a basic reconsidered has become being part is whether the decision scheme, or is statutory simply specific, complex comprehensive such statutory be overruled without affecting narrow ruling may v. 5 Cal.4th 1214-1216 Cal.Rptr.2d scheme. Latimer (People forth a narrow rule of limited McDonald “sets 858 P.2d a basic statu- any and has not become part comprehensive applicability” Thus, Club, “concerns 21 Cal.4th p. scheme. tory supra, {Sierra discussed stare decisis”—which we have above—“predomi- other than adherence to McDonald.14 nate[]”; does not mandate our continued stare decisis (Pe Landrum, Latimer, 1216; also Cal.4th at see ople supra, than decision rather at" should overrule prior [we create absurd “sacrifice procedures”].) legislative policies law,” our conclude that case customary “as for judicial Finally, “and is Mendoza Valle otherwise be to defendants holding may applied (1998) 19 Cal.4th Cal.Rptr.2d retroactive.” v. Birks fully (People have contrary to the manner in which we suggests that our conclusion 14Justice Mosk *26 J., Mosk, 925.) post, (Dis. Justice Kennard opn. p. of at “consistently” construed section 1157. “as interpretation of section 1157 “disregardG” “consistent” asserts that we court’s degree regardless of the evidence or instructions requiring jury determine J., Kennard, 929.) Werdegar that we post, (Dis. p. at And Justice insists opn. receives.” of (Dis. opn. of interpretation 1157.” long-standing “this must adhere to court’s However, J., a case post, 940.) nor Kennard cites Werdegar, p. neither Justice Mosk Justice McDonald, (1984) relatively decision. recent the issue here other than that discusses consideration, McDonald’s dictum we have unpersuasive, Although, we have found after Cal.Rptr. 504 P.2d v. Beamon 8 625 simply disregarded [105 it. Cal.3d (dis. Werdegar, (Beamon), opn. cites in addition McDonald Werdegar which Justice 905] J., court case 941), nothing that the trial in that post, point; in it indicates p. not on contrary, by charged (robbery). degree crime On one instructed the crime and finding degree” “to fix the noting apply” a factual “failed to that suggests trial the Beamon opinion fixing degree,” expressly “refrained from (Beamon, supra, did, fact, degree. jury to fix the crime’s direct court’s instructions 2.) fn. Cal.3d at 1073].) Due do not a different process principles require conclusion, because our “neither criminal holding nor expands liability enhances for conduct punishment committed. ... previously [Citations.] No other arises from retroactive inequity decision.” application [our] (Ibid.) crimes, When committed their they defendants no “acquired cogni- zable reliance interest” in a verdict of obtaining second murder degree “by the means (Birks, set forth in” McDonald. Cal.4th at supra, 136-137.) pp. not, cannot, Defendants do claim that their cases “would been have conducted differently (Birks, absent” McDonald. 19 Cal.4th at We therefore hold that the trial court entered properly judgments against defendants for first murder.

Given our conclusion that section 1157 does not in the apply present cases, need not consider the General’s alternative Attorney contention VI, that article section 13 of the California Constitution us from precludes aside defendants’ setting convictions for first because any error in failure to with section 1157 did not comply in a miscarriage “result[] of justice.”

Conclusion judgment Court of is affirmed. Appeal J., Baxter, J., Brown, J., C.

George, concurred.

MOSK, Idissent. J.

Penal Code section 1157 in pertinent part “Whenever a defend- requires: ant is convicted of a crime .. . which is into distinguished degrees, jury, or the waived, court if a trial is must find the of the crime . . . of which he is guilty. failure of the Upon or the court to so determine, the of the crime ... of which the defendant is guilty, shall be deemed to be of the lesser degree.”

We have word, until consistently, taken the today, at its Penal strictly construing Code section 1157 to an indication require express the trier of fact of the offense. (People McDonald Cal.3d 690 P.2d 46 A.L.R.4th We herein, have specifically rejected renewed argument, when a jury *27 murder, is instructed on solely first the failure of the to jury designate the does not Thus, the default trigger of the statute. in provision McDonald, authored, v. People I we statute explained: applies “[T]he to reduce the in degree even situations in which the intent jury’s to convict other .... is by key is demonstrated its actions greater degree [T]he the can be from circumstances jury gleaned whether the ‘true intent’ of

not itself; instead, the statute turns only outside the verdict form application . the . . . . . the the in verdict form. jury on whether specified HD this created for the situation [IQ presented ... No is exception special (Ibid.) on first degree case which the was instructed solely murder].’’ [in assertions, there is alone nothing “unjust”—let to the Contrary majority’s ante, rule as 911)—about at bright-line “absurd” (maj. opn., p. simple a The clear legislative to a case murder. involving charge felony applied the Act its 21 of amended aim of the statute and predecessor, Punishments, to back more than a century, Crimes and dating Concerning to to the actual verdict and regard promote avoid with uncertainty jury’s a clear its and verdict that is on efficiency by administrative justice requiring face.1 Code section 1157 obscure or burden-

Nor is the under Penal requirement life. no Herculean task to rule is not arcane nor short on It is some: “[The] a (In the of murder.” re Birdwell on jury finding require Moreover, aas safeguard Cal.App.4th Cal.Rptr.2d verdict, to in Penal inadvertent failure such finding against specify court, before to jury, the trial discharging Code section requires it, all before on record has reached verdict on issues that verify charged. crime including v. analysis People to discredit the in

The in a majority, desperate attempt McDonald, on relied therein erroneously assert that with language” (maj. of section 21—a statute analysis an different “different ante, in 915)—that rejected by p. presumptively opn., ante, 916). Penal Code section 1157 1872 (maj. opn., p. enacting which, as legislative it finds no history, argument specious; support noted, to for Revision of Laws evinces intent the Commission commrs., (Code law. and substance” of existing “spirit “preserv[e]” amended, Punishments, Concerning provided: “[T]he the Act Crimes 1Section 21 of shall, tried, they person if find such any person be before indicted for shall whom verdict, thereof, degree.” first designate by whether it be murder of the or second their 129, 139, 139, 2, (Stats. Campbell Cal. we held ch. degree murder in the verdict so expressly require that “the should state statute 1157, first nothing implication point.” Penal Code section be left to should broadening apply requirement, the same while enacted in continued Indeed, Penal Code degrees. preface to the 1872 any crime divisible into but to many existing “While sections of substance of law: the drafters’ intent to retain the indicates give precision errors and to them existing redrawn correct verbal laws have been commrs., have, cases, clearness, (Code preserved.” been spirit and substance all their Burch, commrs.-annotators) vi.) Preface, (1st Haymond & Code ed. Ann. Pen.

927 Preface, Code, vi.) Ann. Pen. at Nor is there in the supra, p. any support for the assertion that the legislative history in amend- majority’s Legislature, 1951, Penal ing Code section 1157 in must have “believed and intended” that the statute would not in the case of murder. apply felony (Maj. opn., ante, 911.) at p. McDonald,

As we observed in “had the chosen to make Legislature section 1157 to cases in which the was instructed on inapplicable crime, one of a it could have so v. Mc- easily provided.” (People Donald, Instead, inaction, 382.) 37 at Cal.3d its “effec- by has tively in this court’s of the acquiesced” statute. v. interpretation (People 757, 895, (1989) Bonillas 48 Cal.3d 804 (cone, 771 P.2d Cal.Rptr. [257 844] Indeed, J.).) entreated to opn. Arguelles, do so some members of by (ibid.), this court has Legislature considered—and rejected—proposed amendments the statute that would have our superseded long-standing judicial (See construction of its (1989-1990 Sen. Bill No. 2572 requirements. 1; Sess.) Reg. (1997-1998 Assem. Bill No. Sess.) 1.) The Reg. § § are majority grasping straws that it is “at speculating least plausible” after Legislature, nearly years consistent decisions in point, “ to this simply ‘looking Court to correct its error’ in McDonald.” (Maj. ante, Rather, 11.) fn. opn., it is more to conclude that the plausible retention Legislature’s that the trier of fact long-standing requirement designate degree, various despite amendments and amendments to proposed statute, its continued implies (See endorsement of that provision. (1997) v. Ledesma 16 Cal.4th 100-101 Cal.Rptr.2d [65 statute raised the change 1310] presumption Legislature’s [failure acquiescence]; People Bouzas 1076]; 807 P.2d cf. DeVita v. County Cal.4th Napa 699, 889 P.2d Cal.Rptr.2d to amend repeated attempts 1019] [defeat

statute additional corroboration of provided intent].) legislative with the

Apparently impatient continued failure of the in this regard, majority undertake to limit the of the statute scope by judicial fiat. statute, our Overruling settled construction of the to its contrary plain now hold that the language, they statute does not in this case apply because murder felony is not a crime (Pen. into “distinguished degrees.” Code, is, for such an predicate § unsound. It exception course, murder, true that like felony other form of murder any designated wait, a crime of the first degree, e.g., by poison, by lying torture, willful, Code, or any (Pen. 189), premeditated killing is not further divisible into But Penal degrees. Code section 1157 addresses generic crimes, e.g., robbery, forms of those offenses. burglary, specific offense; indeed, murder is not a or distinct Felony defendants in this separate *29 with, of, “murder” in and found the crime of guilty matter were charged 187, (a)—not the crime of violation of Penal Code section subdivision murder.” “felony test of the required the McDonald

Abandoning simple bright-line crime, the the verdict to on its face the of substitute majority specify be a standard under which the failure of the to specify degree may new the or the theories theory argued pros- excused—or not—depending clear-cut; The neither nor it will ecution. is majority’s approach simple on a basis of the facts case-by-case unique examination inevitably require Penal and circumstances to determine whether Code section applies. a is obvious. Such costly time-consuming for and litigation potential view, not, the exercise of what more result does in my justify majority’s legislative the appropriately prerogative. Kennard, herein, the I Justice for the

With to verdicts with regard agree that the of the stated in her failure dissenting opinion, reasons cogently to murder of which it found Raul Antonio Valle determine the of deemed to be one second degree that his conviction be of guilty required view, the result in the case of Cruz Alberto my murder. In same is required Valle, because, him of the found Mendoza as the case although the crime in the of offense it failed to the of the of specify form; minutes the the record a verdict the of verdict nor do specifying crime.

Thus, not and I am Werdegar, persuaded unlike Justices Kennard case court’s the Mendoza satisfied require- trial polling jurors rendered, finding 1157. After the verdict was ments of Penal Code section wit, I, in Count a to Mendoza offense charged felony, “guilty California,” 187(a) of the Penal Code of the State of of Section violation “that was vote on charge were as to whether your jurors polled But had each in the affirmative. they murder 187 first answered degree” on or reached to—and had not—deliberated verdict not been instructed murder; indeed, an Mendoza’s for instruction request fixing did jurors to was specify degree rejected. Accordingly, requiring returned and recorded in actually not endorse or assent the verdict effect, court, to determine jurors in its minutes. In trial polling them; verdict, it finding additional merely unanimity imputed such means otherwise follow did not to correct verdict by purport 1164; Code, (Cf. People so. Pen. procedures doing §§ appropriate 1224]; P.2d Cal.4th 53-56 v. Cain Cal.Rptr.2d [40 220]; 734-735 v. Schroeder 96 Cal.App.3d (1947) 81 850-851 v. People Galuppo Cal.App.2d modeled, Code section like the .which it Penal statute on there “establishes rule to which is to be no the Courts have exception, ftQ no create an when the statute makes none. We authority exception statute, have no right positive disregard requirement laws, our to make the but to them.” (People province expound Campbell, *30 40 Cal. at 21 of the and [construing Act Crimes Concerning § Punishments].) reasons, these hold

For I would that the convictions of Cruz Alberto Mendoza and Raul Valle must be second Antonio deemed murder degree of a matter law to Penal Code pursuant section 1157. I dissent.

Accordingly, KENNARD, J., Our PenalCode that Dissenting certain defined provides are murders “of the first while other kinds of of degree” murders are “[a]ll Code, (Pen. the second degree.” The Penal Code also that provides § whenever a crime is into the the “distinguished “must” find degrees,” jury Code, 1157; of the (Pen. crime of the degree which defendant is guilty. section 1157.) hereafter If the fails to the so determine the crime degree, be (Ibid.) “shall deemed to be lesser degree.” that, statutes,

The holds to the majority contrary of these an plain language unwritten exists section exception 1157: the According majority, murder is not a crime divided into and a always defendant be degrees, should of convicted first rather than second murder the degree notwithstanding failure to jury’s determine if the degree evidence prosecution presents that would support first murder conviction and the so only court instructs jury.

I disagree. disregards not of section majority plain language 1157, which admits no but also this court’s consistent exceptions, interpre- of tation section 1157 as to determine the requiring degree regard- less of evidence or the instructions it receives. Rather than rewriting 1157 to section create a novel I follow its clear exception, would command.

I Defendants Cruz Alberto Mendoza and Raul Valle Antonio were tried means simultaneous of evidence two presentation separate juries, defendant convicted each of and separately robbery, burglary. Each also found true robbery-murder burglary-murder special forms, circumstances. Each recorded its written but decisions on verdict for either defendant. In did not of murder forms specify Valle, the each asking but court the jury, juror case Mendoza polled degree.” “that was vote your charge whether first court added.) answered The trial (Italics Each juror individually “yes.” defendant life without each sentencing parole, pronounced judgment first murder with a circumstance. special punishment both defendants contended section On required appeal, their to second murder. The Court reduction of murder convictions that, even failure to determine degree if disagreed, holding jury’s Appeal error in the verdict forms violated section harmless provision VI, to the error. The article 13 of the California Constitution applied harmless on the Court concluded errors here were ground Appeal conviction for first supported only the evidence instructions *31 and not a second murder degree murder under a felony-murder theory, conviction.

II a a is of At issue here is section 1157: “Whenever defendant convicted the or to a crime is into distinguished degrees, crime commit which attempt waived, crime a must degree or the court if trial find jury jury, or the crime of he is the failure Upon jury or guilty. attempted determine, to of crime or crime of which court so degree attempted The be deemed to be of the lesser degree.” the defendant is shall guilty, or bear ensuring jury and the trial court responsibility prosecutor Code, 1164, (Pen. (b); People subd. the court with section 1157. complies 389, 1 77 820 (Marks) (1991) Superior Cal.Rptr.2d v. Court Cal.4th [2 613].) to it is first necessary To understand the function of section properly federal “constitutional of surpassing importance: two recognize protections law,’ ‘due of of of without any liberty process deprivation proscription the accused all criminal guarantee Amdt. prosecutions, ‘[i]n trial, an Amdt. to a impartial jury,’ shall enjoy right speedy public to ‘a entitle criminal defendant a 6. Taken these together, rights indisputably of the crime with element every determination that jury [he] ” Jersey doubt.’ New (Apprendi reasonable charged, which he is beyond 2355-2356, 435], fn. 147 L.Ed.2d S.Ct. (2000) 530 U.S. of the higher be convicted omitted.) safeguards right Section fact, all or has found the trier of whether judge jury, a crime unless degree the crime. it might higher Although the elements constituting degree has not the trier fact in cases where be constitutionally acceptable intent from the stated the of the crime to reconstruct its expressly degree information, instructions, evidence presented, arguments, sources, and other chosen a has higher degree protection, as is its prerogative.

Murder is a crime divided into Penal Code section 189 divides degrees. murder into murders of the first and murders of the second degree degree. First murders as defined in section include what are commonly of, referred to as murders—murders “committed in the felony perpetration crimes, certain other As we have including robbery. attempt perpetrate,” homicides the evidence before the previously recognized, many it to would return either verdict of first murder under a permit verdict, or a second other felony-murder theory addition to verdicts, evidence the possible what finds credible. depending upon v. Jeter Cal.2d (People 674-676 388 P.2d that section does not prosecution argues failure jury’s apply when, here, to determine of murder only theory presented in the instructions and the evidence was first supported by murder based on a I felony-murder theory. disagree.

itsBy section 1157 plain language, without to the evidence applies regard has instructions prosecution of the crime or the presented support *32 the has received. Whenever the jury fails to determine the of a jury degree crime, the conviction by of law is “deemed to be of the operation lesser {Ibid.) As the degree.” word “deemed” makes clear and as the entirety confirms, section 1157 in such cases section 1157 makes no into inquiry what determination of the made or could made under the jury have degree Instead, facts of the case. the constitutional of defendants protect rights the has created a Legislature rule that when the court and bright-line the fail in their determines prosecution to ensure that the the duty jury expressly crime, of the the degree conviction becomes one for the lesser of the degree crime. This is a policy judgment that we are bound to Legislature’s respect.

isNor the conclusion that section 1157 contains no novel. In exceptions v. People McDonald 37 Cal.3d 351 1011],

46 A.L.R.4th the asserted that a verdict form prosecution finding the defendant of murder without the could nonetheless guilty degree specifying be construed aas first murder conviction under section 1157. It degree here, as does the argued, that the had found the prosecution jury impliedly murder, defendant of first degree was instructed given jury on first murder and that it true a degree given found robbery-murder circumstance. special court, rejected for a unanimous

In an Justice Mosk wrote opinion line of in a long contention has been rejected “This argument: precise the verdict.” by be specified that the degree explicitly decisions which require (Pe McDonald, continued: 380.) We 37 Cal.3d supra, v. ople in situations in which even degree statute to reduce applies “[T]he its other demonstrated by degree intent to convict of greater jury’s can be the ‘true intent’ of jury is not whether actions .... key [T]he . . . . . form. . . . . outside the verdict from circumstances gleaned [U RD is created No special exception of the statute are unambiguous. terms [T]he case; to make chosen had for the situation presented by on only was instructed to cases in which section inapplicable crime, so The statute requires it could have easily provided. one degree shall specify defendant verdict guilty, shall find the ‘if to be no to which there is It establishes a rule of murder .... when the to create an exception the Courts have no authority exception, ” McDonald, none.’ (People statute makes 129, 138.) 40 Cal. v. Campbell quoting III In the these results: the facts of this case yields section 1157 to

Applying Valle, determination of made no case of defendant Therefore, deems his section 1157 him guilty. murder of which found defendant In the case of murder. to be one of second conviction Mendoza, did not the written verdict form specify although asked them court jurors when the subsequently polled each first degree,” they responded for “murder 187 their verdict was whether first degree that Mendoza committed oral statement This “yes.” there is no general require- is sufficient to satisfy Code, (See form. Pen. its in written §§ ment that the verdict jury give murder. is for first his conviction Accordingly, *33 IV that the jury failure to insist this case from its

To rescue prosecution Valle, is the majority of defendant in the case its as finding state is 1157 that of section and interpretation a novel unsupported forced adopt that in a murder holds The language. majority the statute’s contrary plain a first only evidence supporting case in which prosecution presents into verdict, divided a crime no longer murder becomes murder ante, (Maj. opn., degrees. it murder though to treat felony holding

The effect of the majority’s Rather, not, one of various it is only crime. of course. It is a were separate of murder be committed. alternative means which one by may Doubtless, could chosen to create murder as a felony have Legislature crime, murder; rather than a form of one doubt- separate equally less, it did not. In

The a fundamental construction: majority ignores statutory principle statute, intent, we with the determining legislative begin language unwise, ill-crafted, think to be. however When imprudent may us, on its face before that answer is answers statutory language question unless we conclude the and its binding language ambiguous meaning plain does not reflect the intent. v. Broussard correctly Legislature’s (People 1067, 278, 1134]; 5 Cal.4th 1071-1072 856 P.2d Cal.Rptr.2d 556, 531, Burden v. Snowden Cal.4th 828 P.2d Cal.Rptr.2d McDonald, In Cal.3d this court concluded case, that section 1157 is unambiguous every regard- applies less of the evidence or instructions to the In presented jury. rejecting conclusion, the here makes no claim that section 1157 is majority ambigu- Rather, ous. it makes the much more remarkable and claim that far-reaching the sole and commonsense “plain of section 1157 is that whether meaning” varies, murder is a crime into distinguished on the factual degrees depending of murder that the theory in section prosecution pursues. Nothing Code, however, section or elsewhere in the Penal even hints that a whether crime “is into on the evidence distinguished degrees” depends in a case rather presented than on whether the defined particular Legislature the crime in the Penal Code as a crime divided into Nor is there degrees. any in the suggestion Penal Code that the intended section 1157 to to some and not all cases in has failed to apply determine degree, evidence of the crime depending presented support charged. of section 1157 is not a majority’s rendering plausible reading of section much less the sole plausible reading. if the

Even eccentric of section majority’s 1157 were reading plausible however, to create a enough statutory ambiguity, reasons presented would be insufficient to demonstrate that the majority majority’s reading reflects the correctly Legislature’s intent. section the Legislature to advance sought of defendants. The means it justice rights protect chose was rule that bright-line does seek to discover what the jury but decided as to the of the crime actually unspokenly charged. Instead, under section 1157 á “must” in case determine the every to, If it fails degree. as matter of law *34 “deem[s]” defendant be convicted of the lesser The statute no may only makes degree. to its rule. exceptions nature in for the lesser by

Section its result convictions very may the in has of crime some cases where the degree charged jury probably the to convict defendant of crime but has failed to intended greater expressly however, that has chosen not to have courts finding. Legislature, state The into the unstated to make a conclusions case-by-case inquiry jury’s attempt what of crime the found. degree to divine jury absurd is founded on the that it is majority’s fallacy position to its of goal section 1157’s for the to advance

contrary purpose Legislature of a rule. defendants means That the has bright-line Legislature protecting degree chosen a rule that result in a conviction for the lesser bright-line may in the convicted the degree, in some cases which would have jury greater however, does not to rule to nor make it absurd the those cases does apply to authorize us to the rule. There absurd in nothing deferring rewrite that the Legisla- Penal Code section 1157 language concluding plain convictions, to ture intended section to all murder not convic- apply just it is based on theories of murder and not others. And fully tions certain with, to, consonant not section 1157’s contrary purpose protecting to in case a defendant be defendants rights require every of a convicted of crime when a so except jury expressly highest finds on the record. an to section 1157 that the exception Legislature

By judicially inventing enact, chosen not to Had majority Legislature’s authority. has usurps one, an it could have enacted intended such Legislature easily exception, McDonald, 351, and court as this noted in People that the considered and 1990 and legislation Legislature rejected proposed illustrates. In a bill introduced in would have Legislature permitted if the failed to determine the trial degree: following jury expressly “[T]he . if to an court fix the . . it is able determine may court or appellate to the same intended fix. from other case jury findings jury made, the defendant cannot be . . . timely If this determination [on motion] the degree entitled to . . . before a new determine shall be a hearing Sess.) (1989-1990 Bill This bill was not (Sen. . . . .” No. 2572 Reg. enacted, Penal Code section and instead the amended Legislature courts, on the record trial before discharging jury, verify require the crime. has determined have introduced in the would permitted another bill evidence, from the “admitted the trial court determine instrument, or other were findings instructions given, charging *35 there is clear and and to “set the at the level where higher made” degree (Assem. a determination.” Bill No. 2402 reliable evidence to such support Sess.) 1.) If the court not able to determine (1997-1998 was Reg. § or order a new it could then “either set the at the lower level degree degree, trial, {Ibid.) determination be the of degree.” the sole issue of which shall then amended to that section 1157 “shall only apply The bill was provide fact a choice as to the degree” the situation where finder of has ... convicted is a “If crime for which defendant was specified law, the failure to determine the as matter of degree upon jury , . . . the court fix the degree determining degree may specified. law, is a as a matter of

whether offense specified degree definitions contained in the court refer to the substantive may descriptive document, form, factual contained in verdict charging any finding fact that the was instructed on a and not lesser jury any only specified or the fact was instructed on one degree, theory Amend, (Assem. (1997-1998 Sess.) case.” to Assem. Bill No. Reg. 29, 1998.) This too bill was never enacted. Apr. also as dictum this court’s conclusion in majority rejects

McDonald, that section 1157 in murder cases applies under a or not it is dictum is prosecuted felony-murder theory. Whether irrelevant, for it is reasoned and reaches the most sensible soundly interpre- Moreover, tation of section 1157. finds in 150 interpretation support law, of California I years as discuss next.

Section 1157 derives from a statute enacted in 1856 that originally 139, 2, 219; (Stats. several ch. hereafter accomplished purposes. statute.) the 1856 The 1856 statute the first to divide the crime of murder into had degrees; been crime. In previously, unitary doing so, the 1856 statute murder committed in the course of certain assigned felonies to the {Ibid.) of first murder. category Finally, required to determine the of murder. It all of this in a accomplished single sentence: “All murder or which shall be means of perpetrated by poison, wait, torture, willful, or other kind of deliberate and lying any committed or shall be in the or premeditated killing, perpetration arson, shall be deemed attempt perpetrate any rape, robbery burglary, be deemed murder of the first and all other kinds of murder shall degree; murder of the second and the before whom indicted degree; any person tried, shall, thereof, for murder shall be if find such they person verdict, their whether it be murder of the first or second designate by {Ibid.) . . . .” doubt,

There is no and the does not majority dispute, plain murder case to of the 1856 statute language required every *36 of the evidence or argument of the regardless the degree specify ago This court so held 130 years of the charge. support presented 129, 138, where we rejected 40 Cal. Campbell, supra, specifically v. People if “it is not was necessary that no determination of degree the argument case, accused could be lawfully of the from the nature possible, have no The court stated: “We of murder in the second degree.” convicted statute, our as it is not of to disregard requirement right positive laws, as ‘designate,’ them. . . . The word to make but expound province for the jury that it will be sufficient here does imply employed, to the of murder of which hint as vague intimate or some give to the words ‘express’ is found but it is equivalent defendant guilty; ‘declare,’ should state intended that the jury expressly and it was evidently be left to so that should nothing of murder in the verdict the degree blush, at the first . . . However absurd it may, on that implication point. crime, when it to be to the jury designate appear require has but one that the offence charged on the face of indictment appears and, for this sound reasons very require- there are perhaps, degree, plausible enactment, it is the reasons for this . have been ment. . . But whatever may is their duty is so written and it for the Courts to know that law sufficient 138-140.) it.” to enforce pp. {Id. supra, the court in v. People Campbell,

It have been absurd for would concluding That would have required to reach a result. contrary Cal. first that, both defined statute in the same sentence even the 1856 though certain felonies in the course of to include committed killings murder committed, the latter of the murder to find the degree juries required did not to the earlier portion. the sentence unaccountably apply portion law, the 1856 codification of California as of the general part enacted as part section 1157. As originally statute replaced by was is distin- a crime “Whenever Penal Code of provided: defendant, must find convict the if degrees, jury, they into guished did the 1856 change crime Section 1157 of which he is guilty.” from the crime statute, the rule’s it did so generalizing application but by statute, alone, crime every under the 1856 as the case that, by deleting here suggests into degrees.” majority “distinguished statute, the been indictments that had present reference to murder decision in this court’s intended to abrogate in 1872 however, of deleting Obviously, purpose 40 Cal. 129. Campbell, to broaden the statute’s application indictments was the reference to murder to include only not to narrow its application all crimes of degree, to include history in the legislative is there evidence any cases of murder. Nor some narrow the 1856 intended to 1157 that it was of section the 1872 version who made to section 1157 the commissioners statute. The annotations Penal Code cite with Campbell apparent drafted it as part intended to that section 1157 was any suggestion without approval Code, commrs., (Code note foil. Ann. Pen. Campbell’s holding. abrogate Burch, 404-405.) commrs.-annotators) (1st ed. & pp. Raymond Moreover, Code, of the 1872 section 5 of the Penal enacted part “The in effect to this provisions codification and continuing day, provides: *37 statutes, Code, the same as substantially existing of this so far as are they thereof, be continuations and not as new enactments.” must construed as (Italics added.) the same as the 1856 Because section 1157 is substantially statute, act “the codified with to crime especially respect as the one.” v. Ellis original (People carries same [judicial] interpretation 39, (1928) 204 Cal. P. [concluding bigamy prohibition [266 518] enacted as be the same as 1872 Penal Code should part interpreted statute, in between the wording pre-1872 bigamy despite significant changes is, as this court two That we must section 1157 provisions].) interpret the 1856 statute in v. 40 Cal. People Campbell, supra, 129. interpreted 1887, And this court has done so. In after the enactment of years 129, 1157, section this court relied on 40 Cal. in People Campbell, supra, 1157, “The section its reliance in these terms: interpreting explaining into has extended this to all crimes ‘distinguished provision Penal] [C]ode degrees.’ Therefore the construction given to the clause of the ^[1856] statute code, cases, as it existed before the in murder us in it may guide construing in P. its broader v. Travers 73 Cal. (People application.” Since section 1157 has been amended three times. It was amended in of a failure to provide consequence jury’s specify than, is a conviction for the lesser rather as a new trial. formerly, 800, 1, (Stats. 1537.) ch. It was then amended in 1951 expand p. § (Stats. its trials. include convictions court trials as well scope 1674, 109, its 3849.) ch. It was amended in 1978 to again expand § crimes (Stats. to include of degree. convictions for to commit scope attempts 1166, 4, retained unchanged ch. All three amendments original “crime . . . into formulation distinguished degrees” limit version of section 1157 and none of them evidenced intention to any of section 1157 in cases where the prosecution presents application . evidence directed at crime only single degree shows, language As this review subverts both majority plain that the statute contains of section 1157 when concludes long history the evidence pre- an unwritten whose application depends upon exception at this late date to course change sented There is no basis prosecution. statute in all cases and abandon our settled conclusion that the governs which faithfully which the fails to determine an degree, interpretation adheres to the statute’s language. plain

V that, defendant failed even if Valle’s argues prosecution on him first degree with section judgment imposing comply VI, be affirmed under article section 13 murder sentence should VI, (hereafter 13). That section pro- California Constitution article cause, aside, trial any vides: “No shall be set or new judgment granted, or of the admission of misdirection of ground jury, improper evidence, or error as to matter of or for any any rejection any pleading, unless, an examination of the entire error as to matter of after any procedure, evidence, cause, the court shall be of the that the error including opinion *38 (Ibid.) of has resulted in miscarriage justice.” complained VI, Article section 13 does not the trial court’s judgment salvage punish- returned a verdict of murder Valle for first murder. Once ing degree section 1157 made discharged, and was degree without specifying The murder of law. Valle’s conviction one for second degree by operation conviction here the trial court’s failure to that Valle’s recognize error was This error and to sentence him accordingly. was for second murder degree Valle, in an sentence resulting illegal exceeding was to obviously prejudicial for a murder conviction. degree the maximum second permitted

Conclusion above, murder I would affirm the first degree For reasons given Mendoza, I reduce the first degree conviction of defendant while would of defendant Valle to second murder. degree murder conviction J., concurred. Werdegar, I dissent, The albeit

WERDEGAR, reluctantly. majority opinion amply J. to section 1157 a strict of Penal Code1 illustrates the illogic application on a first degree felony- this case. The solely the facts of People proceeded defendants; solely was instructed when theory prosecuting case, murder; and, reasonable on the facts of on first degree murder in the first degree counts was verdict for the homicide-related statutory references are to this code. 1All has no factual predi- the second degree murder in A judgment

acquittal. ante, 909), had the and, (maj. opn., as the majority explains cate verdict, to accept could have refused the trial court a second returned (See its verdict. reconsider it, and directed it to reinstructed jury, conviction Antonio Valle’s2 defendant Raul 1161.) Accordingly, reducing artificial, true to reflect his culpabil- fails murder in the second this murderer. is not a result for just ity, concern that

Nevertheless, transcends our in this case the issue raised of section history true reflect his culpability. Valle’s conviction 1164, subdivi- 1157 and to both sections the recent amendments including to the has acquiesced that (b), Legislature sion demonstrates persuasively As to section 1157. explained this court has given rigid fairly interpretation which would dissenting opinion, interpretation, in Justice Kennard’s Valle, one of defendant of the murder for lowering require ancient lineage. almost to the situation where a legislative response

Section 1157 represents into fails degrees, of an offense divided a defendant convicting jury, ante, (maj. offense. As the majority explains opn., specify section 1157 911), provide amended before Legislature be deemed the lesser of the crime shall in such circumstances the degree failure to determine declared rule that a jury’s degree, judicially 1157, therefore, to a trial. Section repre- entitled the defendant new decision, remedy in fashioning just sents the considered Legislature’s error, balanced as a In so doing, retrial reject remedy. *39 include, hand, the financial cost of on the one a of factors. These variety retrial, must again to the and other witnesses who the emotional cost victims on retrial, could be the the defendant acquitted at the and testify possibility costs, hand, a defendant’s on the other are retrial. Balanced these against the charged all the elements of constitutional to have a decide right error, to call crime, the of the ability prosecutor infrequency of statutory duty an before the is discharged, attention to omission has reached the record—that the trial court to ensure—and verify 1164, and fairness to the (b)), subd. (§ on the of the crime verdict defendant, time. The Legisla- to run the a second gauntlet who would have retrial, to the lesser to reduce the offense to eschew but ture’s solution was as a matter of law. one necessarily of this resolution Legislature’s problem That did is the one the Legislature of no it I have chosen is consequence; would justification to polling jury provides sufficient agree Kennard that the 2I with Justice lowered, of his be but that murder conviction must of defendant Valle’s conclude be. Alberto Mendoza need not codefendant Cruz 940 it,

choose and has adhered to. Nor is as the an “absurd” majority proclaims, ante, 911-912). To choice balance policy (maj. pp. complex opn., concerns in involved cases fails policy specify crime, of a and conclude a clear rule should is not bright-line govern, absurd in those few cases in defendant obtain an even which might benefit. unjust event, has to this court’s any Legislature appears acquiesced 1157, of section are not at liberty

long-standing interpretation its for the work views. Judicial restraint disregard respect Legislature’s that we adhere to our absent some indication compel previous interpretations “ intends some different this court has often Legislature meaning. ‘[A]s role in a democratic recognized, judicial society fundamentally laws, not The latter to the to write them. interpret power belongs primarily and the branches of . . . .’ v. Fair Pol. people political government (Kopp 607, 108, P.2d (1995) Practices Com. 11 Cal.4th 675 905 Cal.Rptr.2d [47 due (cone. J.).) It cannot be too often Werdegar, opn. repeated 1248] for the branches of our us to respect political government requires interpret the laws in accordance with the intention of the ‘This Legislature. expressed court has no to rewrite the statute so as to make it conform to power ” intention which is not Teachers Assn. v. (California presumed expressed.’ (1997) Bd. Rialto School Dist. 14 Cal.4th 633 Governing [59 Unified 1175], P.2d Seaboard Acceptance Corp. 927 Cal.Rptr.2d quoting (1931) 214 Cal. P.2d Shay [5

Members of this court and of the lower courts have urged appellate (see to look at section 1157 v. Bonillas anew 757, 803, (cone. Cal.3d fn. 3 opn. 844] J.), cited), and cases the anomalous strong language Arguelles, explaining (see, results that can occur from a strict of the statute e.g., People application (cone. opn. v. Thomas Cal.App.3d Cal.Rptr. 532] J.) court “to exalt Ashby, requires appellate application [strict substance”]). amending Legislature, form over responded courts, ensure section 1164 to that trial before discharging jury, require *40 1990, ch. (Stats. rendered a verdict on the of the crime. 800, 1, 3548; (Marks) (1991) 1 Cal.4th see v. Court People Superior P.2d “strict [urging fn. 15 Cal.Rptr.2d compliance 613] [with [2 This amendment to section to forestall procedural quagmires”].) § 1164] should honor addressing 1164 was Legislature’s way problem; choice. the legislative would admittedly

Although majority’s reinterpretation I commensurate his on defendant Valle a sentence with culpability, impose on the role without intruding endorse the majority’s reasoning find I cannot 1157 to amends section until Accordingly, body of the Legislature. to one rule it now from the bright-line provides the statute’s meaning change case, I would facts of each of the individual an examination permitting of that statute (People adhere to our interpretation reluctantly previous (1984) 37 Cal.3d 351 Cal.Rptr. McDonald 625, 629, fn. 2 1011]; (1973) v. Beamon

A.L.R.4th 905]) and therefore dissent. 504 P.2d 13, 2000. denied for a rehearing September Appellants’ petition Mosk, J., Kennard, J., petition were Werdegar opinion should be granted.