People v. Aranda

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Appellant,
v.
BRIAN MICHAEL ARANDA,
Defendant and Respondent.
S214116
Fourth Appellate District, Division Two
E056708
Riverside County Superior Court
RIF154701
April 4, 2019
Justice Corrigan authored the opinion of the court, in which
Chief Justice Cantil-Sakauye and Justices Liu, Cuéllar,
Kruger, and Groban concurred.
Justice Chin filed a dissenting opinion.
PEOPLE v. ARANDA
S214116
Opinion of the Court by Corrigan, J.
Stone v. Superior Court (1982) 31 Cal. 3d 503 (Stone)
concluded that a court must accept a partial verdict of
acquittal as to a charged greater offense when a jury has
expressly indicated it has acquitted on that offense but has
deadlocked on uncharged lesser included offenses. The
question here is whether the Stone rule has been abrogated by
the United States Supreme Court’s decision in Blueford v.
Arkansas (2012) 566 U.S. 599 (Blueford), which concluded that
federal double jeopardy principles do not require a court to
accept a partial verdict. We conclude the Stone rule survives
as an interpretation of the state Constitution’s double jeopardy
clause. The trial court’s failure here to receive a partial
acquittal verdict on first degree murder rendered the
declaration of a mistrial on that charge without legal necessity.
Accordingly, defendant may not be retried on that allegation.
As the Court of Appeal reached the same conclusion, we affirm
the judgment.
I. BACKGROUND
Evidence was introduced that, on the night of December
1, 2009, defendant received texts from his girlfriend, 15-year-
PEOPLE v. ARANDA
Opinion of the Court by Corrigan, J.
old Alexis C.,1 asking for help because she feared her father
was going to rape her as he had done before. Defendant went
to her home and found her asleep in bed with her father. As
defendant tried to take her out of the house, the father
awakened and a fight ensued. During that confrontation,
defendant fatally stabbed the father with an ice pick he had
brought with him.
Defendant was charged with a single count of murder.2
At the close of evidence, the court instructed the jury on first
degree murder, second degree murder, and voluntary
manslaughter. 3 The jury received “guilty” verdict forms for
each offense and a single “not guilty” form.
On the third day of deliberations, the jury reported
discussions had become hostile. After consulting with counsel,
the court asked the foreperson “how things are going” and if
the court could do anything to assist. The foreperson reported
the jury was “at a stalemate” and explained: “So we’ve
basically ruled out murder in the first degree. So then we
moved to murder in the second degree. . . . [¶] So we worked
down to voluntary manslaughter, but there’s still a couple that
are still stuck on second degree.” The foreperson later
1
The information charged Alexis C. as a codefendant. The
court severed her case from defendant’s and tried defendant
first.
2
The information also alleged an enhancement for
personal deadly weapon use. (Pen. Code, former § 12022, subd.
(b)(1).)
3
Penal Code sections 187, subdivision (a), 189, 192,
subdivision (a); CALCRIM Nos. 500, 520, 521, 522, 570, 571.
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PEOPLE v. ARANDA
Opinion of the Court by Corrigan, J.
repeated that some jurors “are stuck on second degree and
then went down to voluntary,” but they were “working through
it.” Deliberations continued.
The next court day, defense counsel asked the jury be
given a “not guilty” verdict form for first degree murder. The
prosecutor objected. The foreperson asked to speak with the
court and again reported the jury was at an impasse,
explaining that one juror “thinks it’s second degree,” “[a]nd
then we’ve got two that are on the side of voluntary. And then
we’ve got nine that are not guilty.” Outside the foreperson’s
presence, the prosecutor expressed his view that the jury was
“hopelessly deadlocked.” Defense counsel urged the jury was
frustrated but not deadlocked. The court brought the panel
into the courtroom to ask if anything would assist them. As
they waited for the jury, counsel debated the defense request
for a “not guilty” verdict form on first degree murder. The
court denied the request, stating: “I don’t want to change
horses in midstream. We sent it in a certain way, and to
change anything makes it seem like we’re directing them as to
which way to think, and I don’t want to do that.” After
answering some questions about jury instructions, the court
ordered the jury to deliberate for the remainder of the day,
about 40 minutes. After that time expired, the jury returned,
and the foreperson said they were “still at the same spot.” The
court asked whether “it’s still basically nine to two to one,” and
the foreperson replied it was. The court concluded the jury
was deadlocked and declared a mistrial.
The defense moved to dismiss the first degree murder
allegation on double jeopardy grounds. Relying on Stone,
defendant argued the court’s failure to allow the jury to acquit
him of first degree murder barred a retrial on that charge.
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Opinion of the Court by Corrigan, J.
Defendant also argued double jeopardy barred a trial on second
degree murder and voluntary manslaughter as well. The
court4 ultimately dismissed the first degree murder charge but
declined to dismiss the lesser offenses. The People
unsuccessfully sought reconsideration based upon Blueford,
which had recently been decided.
The People, represented by the Riverside County District
Attorney’s Office, appealed the dismissal of the first degree
murder charge. The Court of Appeal affirmed. We likewise
affirm.
II. DISCUSSION
A. Legal Background
Under the Fifth Amendment to the United States
Constitution and article I, section 15, of the California
Constitution, a person may not be twice placed in jeopardy for
the same offense. This double jeopardy principle bars a second
prosecution for the same crime after an acquittal or conviction.
(People v. Anderson (2009) 47 Cal. 4th 92, 103-104 (Anderson).)
Even if a jury returns no verdict on a particular charge, retrial
is only permitted in limited circumstances. “ ‘Retrial after
discharge of a jury without “manifest” (in federal terminology)
or “legal” necessity violates the protections afforded under
both’ the federal and state constitutional double jeopardy
clauses.” (People v. Carbajal (2013) 56 Cal. 4th 521, 534
(Carbajal), quoting People v. Halvorsen (2007) 42 Cal. 4th 379,
425 (Halvorsen).) Although “the failure of a jury to agree on a
4
Judge Helios “Joe” Hernandez presided over the trial,
while Judge Michele D. Levine heard the dismissal motions.
4
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Opinion of the Court by Corrigan, J.
verdict is an instance of ‘manifest necessity’ permitting retrial
of the defendant” (Anderson, at p. 104), “granting an
unnecessary mistrial bars retrial” under double jeopardy
principles (People v. Hernandez (2003) 30 Cal. 4th 1, 8).
Stone held that “the trial court is constitutionally
obligated to afford the jury an opportunity to render a partial
verdict of acquittal on a greater offense when the jury is
deadlocked only on an uncharged lesser included offense.
Failure to do so will cause a subsequently declared mistrial to
be without legal necessity.” (Stone, supra, 31 Cal.3d at p. 519.)
Stone was charged with a single count of murder. The jury
was instructed on, and received guilty verdict forms for, first
and second degree murder, and voluntary and involuntary
manslaughter. It was given a single verdict form for acquittal
on all charges, as well as a verdict form for “justifiable
homicide.” (Id. at p. 507.) After seven days of deliberations,
the foreman reported in open court that there were no votes for
first or second degree murder but various votes for both forms
of manslaughter and justifiable homicide. Each juror, in
response to court inquiry, stated a belief that the jury was
hopelessly deadlocked. (Ibid.) The court denied defense
counsel’s request to accept a partial verdict of acquittal on
murder and ordered further deliberations. After another day
and a half of deliberations, the foreman again indicated that
there were no votes for first or second degree murder and
various votes for manslaughter and justifiable homicide. The
court declared a mistrial and discharged the jury. (Id. at pp.
508-509.)
Stone reasoned there was no legal necessity for a mistrial
as to murder and a partial verdict of acquittal could have been
taken. (Stone, supra, 31 Cal.3d at pp. 514-519.) The court
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Opinion of the Court by Corrigan, J.
initially observed that, under our statutory scheme, the
prosecutor has discretion to separately charge all lesser
included offenses (see Pen. Code, § 954) or to charge only the
greater offense (see Pen. Code, § 1159). (Stone, at p. 517.) If
included offenses are separately charged, the court must
inquire whether the jury has reached a verdict on any of the
charged counts and receive any verdicts before discharging the
jury. (Pen. Code, §§ 1160, 1164; see discussion post.) Stone
reasoned that if our statutory scheme requires the taking of
partial verdicts when included offenses are charged separately,
it would be “anomalous to formulate a rule that prevents a
trial court from receiving a partial verdict on a greater offense
on which the jury clearly favors acquittal merely because the
prosecutor elected to charge only that offense, and left it to the
court to instruct on any lesser included offense supported by
the evidence. In addition to seriously infringing on the
defendant’s double jeopardy interest in avoiding retrial for
offenses on which he has been factually acquitted, such a rule
would make his substantive rights turn on the formality of
whether he was charged in separate counts with the greater
offense and the lesser included offense, or was charged in a
single count with only the greater offense.” (Stone, at pp. 517-
518.)
The Stone rule “protects a defendant from retrial when
the jury agrees that the greater offense was not proven but
cannot agree on a lesser included offense. Without the rule, a
general declaration of mistrial would disguise the fact that the
jury agreed the defendant was not guilty of the greater offense,
making the defendant subject to retrial on both the greater and
lesser offenses.” (Anderson, supra, 47 Cal.4th at p. 114.) We
further clarified in People v. Kurtzman (1988) 46 Cal. 3d 322
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(Kurtzman) that, although a jury may consider the charges in
any order, “the jury must acquit of the greater offense before
returning a verdict on the lesser included offense . . . .” (Id. at
p. 330.) This procedure is known as “the acquittal-first rule.”
(Anderson, at p. 114.)
The People argue Stone has been overruled by Blueford,
which held that the federal double jeopardy clause does not
require a court accept a partial verdict of acquittal with respect
to a greater offense. Blueford was charged in Arkansas state
court with a single count of capital murder. The jury received
verdict forms for that offense and for included offenses of first
degree murder, manslaughter, and negligent homicide. It was
given a single acquittal form. After jurors declared an impasse
during deliberations, the foreperson reported that the jury was
“ ‘unanimous against’ ” capital and first degree murder but
deadlocked on manslaughter. (Blueford, supra, 566 U.S. at p.
603.) The court ordered further deliberations. The defense
requested verdict forms be provided, permitting the jury to
acquit Blueford of capital and first degree murder. The court
refused. The jury remained deadlocked, and the court declared
a mistrial. (Id. at p. 604.)
Blueford argued the foreperson’s report indicating the
jury was “ ‘unanimous against’ ” capital and first degree
murder constituted an acquittal for double jeopardy purposes.
(Blueford, supra, 566 U.S. at p. 603.) The high court rejected
the claim. The court reasoned the foreperson’s report “was not
a final resolution of anything. When the foreperson told the
court how the jury had voted on each offense, the jury’s
deliberations had not yet concluded. . . . The fact that
deliberations continued after the report deprives that report of
the finality necessary to constitute an acquittal on the murder
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offenses.” (Id. at p. 606.) “It was therefore possible for
Blueford’s jury to revisit the offenses of capital and first-degree
murder, notwithstanding its earlier votes. And because of that
possibility, the foreperson’s report prior to the end of
deliberations lacked the finality necessary to amount to an
acquittal on those offenses, quite apart from any requirement
that a formal verdict be returned or judgment entered.” (Id. at
p. 608.)
With respect to the question of manifest necessity,
Blueford argued the court was obligated to take some action,
“whether through partial verdict forms or other means, to
allow the jury to give effect to those votes, and then consider[]
a mistrial only as to the remaining charges.” (Blueford, supra,
566 U.S. at p. 609.) Again, the Blueford court disagreed: “We
have never required a trial court, before declaring a mistrial
because of a hung jury, to consider any particular means of
breaking the impasse—let alone to consider giving the jury
new options for a verdict. [Citation.] As permitted under
Arkansas law, the jury’s options in this case were limited to
two: either convict on one of the offenses, or acquit on all. The
instructions explained those options in plain terms, and the
verdict forms likewise contemplated no other outcome. . . .
When the foreperson disclosed the jury’s votes on capital and
first-degree murder, the trial court did not abuse its discretion
by refusing to add another option—that of acquitting on some
offenses but not others. That, however, is precisely the relief
Blueford seeks—relief the Double Jeopardy Clause does not
afford him.” (Id. at pp. 609-610, fn. omitted.)
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Opinion of the Court by Corrigan, J.
B. Stone Survives Blueford Under California Law
Blueford makes clear that the federal double jeopardy
clause does not require the taking of a partial verdict of
acquittal on a greater offense when the jury has indicated a
deadlock on a lesser included offense. To the extent Stone
suggested otherwise, it has been abrogated by Blueford.
But this resolution does not end the inquiry. Although
the Fifth Amendment does not require the taking of partial
verdicts, neither does it forbid the practice. Blueford noted
Arkansas law precluded the taking of partial verdicts.
(Blueford, supra, 566 U.S. at pp. 609-610; see Blueford v. State
(Ark. 2011) 370 S.W.3d 496, 502.) The high court in Blueford
reasoned the court did not abuse its discretion by not adding a
third option (the taking of partial verdicts) not otherwise
contemplated by state law. (Blueford, at pp. 609-610.)
Blueford was thus silent as to whether a state may require the
taking of partial verdicts under its own laws.
The People primarily argue that, because Stone relied
exclusively upon the federal Constitution, and Blueford
clarified that federal double jeopardy principles do not require
the taking of partial verdicts, Stone has implicitly been
overruled by Blueford. An examination of Stone reflects it
relied on its understanding of both federal and state
constitutional principles. Stone began its analysis by citing
both the Fifth Amendment and article I, section 15 (formerly
§ 13) of our state Constitution. Under the latter provision,
Stone noted this court was “free to delineate a higher level of
protection,” and cited a case that, in fact, did so. (Stone, supra,
31 Cal.3d at p. 510; see Curry v. Superior Court (1970) 2 Cal. 3d
707, 716 (Curry).) Although the People argue that Stone did
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not expressly state it was delineating a higher level of
protection under the state constitutional provision, as
defendant observes, there would seem no reason to mention
the provision if Stone intended to rely exclusively upon the
federal Constitution. Stone thereafter cited California cases
pertaining to informal verdicts of acquittal and those applying
the doctrine of implied acquittal, under which a conviction on a
lesser included offense constituted an implied acquittal of the
greater. (See Stone, at p. 511; see also id. at pp. 511-512, fn. 5.)
Stone then distinguished at length People v. Griffin (1967) 66
Cal. 2d 459, a case predating application of the federal double
jeopardy clause to the states. (Stone, at pp. 512-514.)
Although Stone then discussed several recent United States
Supreme Court cases, including Green v. United States (1957)
355 U.S. 184, it also cited several of our cases in accord. (See
Stone, at pp. 515-517.) At most, Stone did not differentiate
between the federal and state double jeopardy clauses. Its
discussion of both federal and state authorities largely
assumed the two clauses were coextensive, at least as to this
issue. (See Stone, at p. 516 [referencing “the double jeopardy
clause” without differentiation].)
We conclude the Stone rule survives as an interpretation
of California’s double jeopardy clause. “[T]he California
Constitution is a document of independent force and effect that
may be interpreted in a manner more protective of defendants’
rights than that extended by the federal Constitution, as
construed by the United States Supreme Court.” (People v.
Fields (1996) 13 Cal. 4th 289, 298 (Fields).) The state double
jeopardy clause was included in both the 1849 and 1879
California Constitutions (see Cal. Const. of 1849, art. I, § 8;
Cal. Const. of 1879, art. I, § 13), long before the high court
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applied the federal clause to the states (Benton v. Maryland
(1969) 395 U.S. 784, 794). (See People v. Batts (2003) 30
Cal. 4th 660, 686.) In 1974, as part of a broader constitutional
revision, the voters retained the double jeopardy provision
(Cal. Const., art. I, § 15) and added language that “[r]ights
guaranteed by this Constitution are not dependent on those
guaranteed by the United States Constitution” (Cal. Const.,
art. I, § 24). “[T]he adoption in 1974 of article I, section 24,
confirmed that the California courts had the authority to adopt
an independent interpretation of the state Constitution.”
(Raven v. Deukmejian (1990) 52 Cal. 3d 336, 353.) 5
On several occasions, we have construed the state double
jeopardy clause to be more protective than its federal
counterpart. For example, People v. Batts, supra, 30 Cal. 4th
660 concluded that double jeopardy principles not only barred
a retrial after a prosecutor commits misconduct for the purpose
of triggering a mistrial, the federal standard, but also if a
prosecutor commits misconduct to thwart a reasonable
prospect of acquittal. (Id. at pp. 665-666.) People v. Henderson
5
In 1990, the voters enacted Proposition 115, which
amended article I, section 24 of the California Constitution to
reflect that, in criminal cases, various rights, including the
prohibition against being put twice in jeopardy, “shall be
construed by the courts of this state in a manner consistent
with the Constitution of the United States” and “[t]his
Constitution shall not be construed by the courts to afford
greater rights to criminal defendants than those afforded by
the Constitution of the United States . . . .” (Stats. 1990, p. A-
243.) Raven v. Deukmejian, supra, 52 Cal. 3d 336 struck down
this provision as an invalid constitutional revision. (See id. at
pp. 342-343.)
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Opinion of the Court by Corrigan, J.
(1963) 60 Cal. 2d 482 held that a defendant could not receive a
more severe punishment on retrial after a successful appeal, a
limitation not required by the federal double jeopardy clause.
(Henderson, at pp. 495-497; compare People v. Collins (1978) 21
Cal. 3d 208, 216-217 [applying Henderson], People v. Hood
(1969) 1 Cal. 3d 444, 459 (Hood) [same], with North Carolina v.
Pearce (1969) 395 U.S. 711, 719-725.) Similarly, Cardenas v.
Superior Court (1961) 56 Cal. 2d 273 declined to follow high
court authority and concluded that a mistrial declared without
a defendant’s consent barred a retrial even if the mistrial was
declared for his “benefit.” (Id. at p. 276.) We declined to
reconsider Cardenas even after application of the federal
double jeopardy clause to the states. (Curry, supra, 2 Cal.3d at
pp. 716-717.)
People v. Hanson (2000) 23 Cal. 4th 355 (Hanson) is
instructive. Hanson addressed whether imposition of a
restitution fine on resentencing came within the Henderson
rule prohibiting a more severe punishment after a successful
appeal. The Court of Appeal in Hanson noted that the United
States Supreme Court had interpreted the federal clause as not
precluding a more severe sentence. It then held there were no
“ ‘cogent reasons’ ” to construe the state provision differently.
(Hanson, at p. 363; see Gabrielli v. Knickerbocker (1938) 12
Cal. 2d 85, 89.) This court rejected that analysis as “flawed”
and questioned whether cogent reasons were required for
adhering to a preexisting interpretation of the state
Constitution. (Hanson, at p. 363.) Hanson distinguished
People v. Monge (1997) 16 Cal. 4th 826, which concluded that
federal double jeopardy principles did not bar retrial of a prior
conviction allegation reversed on appeal for insufficient
evidence. (Id. at pp. 831-843 (lead opn. of Chin, J.).) Monge
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Opinion of the Court by Corrigan, J.
also reasoned that no cogent reasons existed to interpret the
state double jeopardy clause differently from its federal
equivalent. (Monge, at pp. 843-845 (lead opn. of Chin, J.).)
Hanson reasoned that Monge “cannot be read to suggest
this court intends a wholesale reevaluation of state double
jeopardy principles” whenever it is apparent that federal
double jeopardy principles have diverged. (Hanson, supra, 23
Cal.4th at p. 364.) Hanson noted that the issue in Monge
“remained an open question as to both this court and the
United States Supreme Court” and its application of the cogent
reasons standard “must thus be understood as applying to this
narrow, previously undecided, issue, not as a signal to reassess
matters firmly settled under state constitutional law.” (Ibid.)
Hanson concluded that “nothing in Monge gives license to
jettison the reasoning of Henderson in circumstances where it
plainly applies.” (Ibid.) Hanson ultimately reaffirmed the
reasoning of Henderson and its progeny. (Id. at pp. 365-366; cf.
People v. Statum (2002) 28 Cal. 4th 682, 693-694.)
Similarly here, nothing in the reasoning of Blueford,
decided 30 years after Stone, suggests we should now abandon
our long-established precedent. Stone observed that “[o]ne of
the primary purposes of the double jeopardy protection is to
prevent successive prosecutions for the same offense” (Stone,
supra, 31 Cal.3d at pp. 514-515) and concluded that a
procedure to accept a partial acquittal on a greater offense was
necessary to prevent “seriously infringing on the defendant’s
double jeopardy interest in avoiding retrial for offenses on
which he has been factually acquitted” (id. at p. 518). (See
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Anderson, supra, 47 Cal.4th at p. 114.) Stone articulated a
fairness rationale for its holding based upon our criminal
procedure. As Stone explained, the Penal Code 6 allows a
prosecutor to charge an offense and all of its lesser included
offenses in separate counts. Section 954 permits an accusatory
pleading to charge “different statements of the same offense.”7
Although, ordinarily, a defendant “may be convicted of any
number of the offenses charged” (§ 954), “a judicially created
exception to this rule prohibits multiple convictions based on
necessarily included offenses” (People v. Montoya (2004) 33
Cal. 4th 1031, 1034). (See People v. Sanders (2012) 55 Cal. 4th
731, 736; People v. Pearson (1986) 42 Cal. 3d 351, 355,
6
Subsequent references will be to the Penal Code unless
otherwise noted.
7
Section 954 provides in full: “An accusatory pleading
may charge two or more different offenses connected together
in their commission, or different statements of the same
offense or two or more different offenses of the same class of
crimes or offenses, under separate counts, and if two or more
accusatory pleadings are filed in such cases in the same court,
the court may order them to be consolidated. The prosecution
is not required to elect between the different offenses or counts
set forth in the accusatory pleading, but the defendant may be
convicted of any number of the offenses charged, and each
offense of which the defendant is convicted must be stated in
the verdict or the finding of the court; provided, that the court
in which a case is triable, in the interests of justice and for
good cause shown, may in its discretion order that the different
offenses or counts set forth in the accusatory pleading be tried
separately or divided into two or more groups and each of said
groups tried separately. An acquittal of one or more counts
shall not be deemed an acquittal of any other count.”
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overruled on another ground in People v. Vidana (2016) 1
Cal.5th 632, 651.)
Section 1160 provides in relevant part: “Where two or
more offenses are charged in any accusatory pleading, if the
jury cannot agree upon a verdict as to all of them, they may
render a verdict as to the charge or charges upon which they do
agree, and the charges on which they do not agree may be tried
again.” “Section 1160 implements the legal necessity doctrine
in the multiple count situation by permitting the trial court to
receive a verdict on one count and to discharge the jury with
respect to another count on which the jury deadlocked without
jeopardy attaching as to that charge.” (Fields, supra, 13
Cal.4th at p. 300; see Anderson, supra, 47 Cal.4th at p. 104.)
“Where the offenses are in fact greater and lesser included,
however, this language must be interpreted in light of the
doctrine of implied acquittal.” (Kurtzman, supra, 46 Cal.3d at
p. 333.) Because a conviction on a lesser included offense will
be deemed an implied acquittal of the greater offense,
Kurtzman requires the jury to expressly acquit of the greater
offense before rendering a verdict on a lesser offense, noting
such a requirement “represents an appropriate balancing of
interests.” (Ibid.) Indeed, “one significant advantage to the
procedure for receipt of partial verdicts of acquittal established
in Stone and further refined in Kurtzman is that, when
properly employed,” reliance on the doctrine of implied
acquittal is unnecessary. (Fields, at p. 309.)
In a multi-count case, section 1160 generally requires a
trial court to allow the jury to return a verdict on any count
upon which it agrees. (Cf. Carbajal, supra, 56 Cal.4th at pp.
530-531 [describing procedures for accepting a jury verdict].) If
the charged counts involve included offenses, the court must
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accept an acquittal verdict on a greater offense even if the jury
could not agree on any of the separately charged lesser
offenses. (See Stone, supra, 31 Cal.3d at p. 517.)
As Stone observed, our Penal Code allows the jury the
power to “find the defendant guilty of any offense, the
commission of which is necessarily included in that with which
he is charged, or of an attempt to commit the offense.” (§ 1159;
Stone, supra, 31 Cal.3d at p. 517.) The prosecution may charge
a single offense and the trial court must instruct on any lesser
included offenses supported by the evidence. (See Fields,
supra, 13 Cal.4th at p. 308; Hood, supra, 1 Cal.3d at pp. 449-
450.) In this scenario, however, if the jury deadlocks on a
lesser included offense, section 1160 would not explicitly
obligate the court to accept an acquittal verdict on the greater
offense because all the included offenses relate to a single
count.
Stone observed it would be “anomalous” to preclude a
court from accepting an acquittal verdict on a greater offense
in a single-count case when our statutory scheme would
require a court to accept the same verdict had the prosecutor
separately charged the included offenses. (Stone, supra, 31
Cal.3d at p. 517.) A defendant’s double jeopardy rights should
not “turn on the formality of whether he was charged in
separate counts with the greater offense and the lesser
included offense, or was charged in a single count with only the
greater offense.” (Id. at p. 518.) We have reiterated that “[i]t
is well established . . . that the prosecutor’s method of charging
a defendant does not affect a defendant’s double jeopardy
rights.” (Fields, supra, 13 Cal.4th at p. 308.) As a matter of
state constitutional law, Stone’s reasoning supports the taking
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of partial verdicts regardless of how the prosecution charges
the case. (Stone, at p. 519.)
The People argue that the “alleged charging inequity is
nothing more than a legal fiction” because “[i]n practice, a
prosecutor rarely, if ever, charges separate counts to
enumerate the degrees of murder because to do so would risk
the defendant entering a plea of guilty to one of the lesser
charged offenses.” The argument misses the mark because the
law is to the contrary. Double jeopardy principles do not allow
a defendant to plead guilty to a lesser included offense over
prosecutorial objection to thwart the prosecution of a greater
offense. (See Ohio v. Johnson (1984) 467 U.S. 493, 500-502;
Anderson, supra, 47 Cal.4th at pp. 109-110.)
The dissent suggests our conclusion is at odds with
People v. Fields, supra, 13 Cal. 4th 289. Fields reasoned that,
for double jeopardy purposes, a conviction on a lesser included
offense did not constitute an implied acquittal of the greater
offense barring retrial where the jury expressly deadlocked on
the greater. (Id. at pp. 301-303.) However, Fields concluded,
because the trial court had accepted and recorded the jury’s
guilty verdict on the lesser offense, retrial on the greater
offense was barred by statute. (Id. at pp. 305-310; see § 1023.)
Rather than accept a verdict on a lesser included offense under
such circumstances, Fields observed “the trial court may
properly decline to receive and record this verdict of conviction
pending further deliberations by the jury” and remind the jury
it may not convict on a lesser included offense until it has
acquitted on the greater. (Fields, at p. 310; Kurtzman, supra,
46 Cal.3d at p. 330.)
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Opinion of the Court by Corrigan, J.
The dissent asserts that “[t]he same fairness rationale
that, the Stone court held, mandated the taking of partial
verdicts of acquittal should have mandated the taking of
partial verdicts of conviction. But Fields concluded otherwise.”
(Dis. opn., post, at p. 7.) The dissent reasons: “A procedure
permitting a partial verdict of guilt would work the same way
a procedure permitting a partial verdict of acquittal is
supposed to work. If the jury unanimously found the
defendant was guilty of a lesser offense (for example, second
degree murder), but was hopelessly deadlocked on the greater
offense (for example, first degree murder), the trial court could
take a verdict of guilty of second degree murder and declare a
mistrial regarding first degree murder. At retrial, the jury
would decide only whether the murder was of the first or
second degree. This procedure would be exactly as clear (or
murky) as partial verdicts of acquittal. No reason exists to
require the one and prohibit the other.” (Ibid.)
Fields concluded a retrial on a greater offense is barred if
a court accepts a conviction on a lesser included offense
because “once a conviction on the lesser offense has been
obtained, ‘ “to [later] convict of the greater would be to convict
twice of the lesser.” ’ ” (Fields, supra, 13 Cal.4th at p. 306.)
“The greater offense is . . . by definition the ‘same’ for purposes
of double jeopardy as any lesser offense included in it.” (Brown
v. Ohio (1977) 432 U.S. 161, 168; see § 1023.) This rule
explains why “a partial verdict of guilt” (dis. opn., post, at p. 7)
is generally not accepted and Fields’s application of that rule
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Opinion of the Court by Corrigan, J.
did not call Stone’s reasoning into question. 8 Indeed, Fields
involved included offenses charged in separate counts (see
Fields, at p. 300, fn. 2) and expressly endorsed Stone’s
reasoning in rejecting “an analytical distinction between
proceedings in which the lesser included offense was
specifically charged in a separate count, and those in which the
lesser offense is impliedly charged in an information charging
only the greater offense in a single count.” (Id. at p. 308.)
There is no conflict between Stone and Fields. The
reason a court should not accept a verdict when “the jury
renders only a verdict of guilty on the lesser included offense”
(Fields, supra, 13 Cal.4th at p. 310) is because such a verdict
makes it unclear what the jury intended with respect to the
greater offense. The verdict on a lesser offense masks whether
the jury intended to acquit on the greater, in which case the
jury should do so expressly before convicting on a lesser, or
whether it is deadlocked on the greater, whereupon the court
should declare a mistrial and not accept a verdict on a lesser
offense. (Id. at p. 311.) Rather than accept a verdict that
perpetuates ambiguity, Fields suggested a procedure that
clarifies the jury’s intent. Similarly in Stone, when the jury
has affirmatively indicated it has unanimously acquitted on a
8
To clarify, Fields did not bar the taking of a guilty verdict
on a lesser included offense when a jury deadlocks on the
greater. It only noted that such a verdict precludes a retrial on
the greater offense. Fields observed that, under some
circumstances, “the People may prefer to forgo the opportunity
to convict the accused of the greater offense on retrial in favor
of obtaining a present conviction on the lesser included
offense.” (Fields, supra, 13 Cal.4th at p. 311.)
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Opinion of the Court by Corrigan, J.
greater offense, allowing the jury to record such a verdict
serves to clarify and give effect to the jury’s intent. The
procedures outlined in both Stone and Fields thus further the
interest of promoting clarity in jury verdicts.
By requiring the taking of partial verdicts in single count
cases, Stone’s interpretation of the state double jeopardy clause
sought to eliminate an anomaly created by our criminal
procedure. Although our affirmation of the Stone rule does not
depend on the existence of any particular statutory scheme, we
observe that Stone’s solution to this anomaly is fully consistent
with other Penal Code provisions regarding the taking of
verdicts. Our statutory scheme reflects a general legislative
preference for giving effect to unanimous jury verdicts. “No
jury shall be discharged until the court has verified on the
record that the jury has either reached a verdict or has
formally declared its inability to reach a verdict on all issues
before it . . . .” (§ 1164, subd. (b); see also § 1140.) After
deliberations, “[w]hen the jury appear they must be asked by
the Court, or Clerk, whether they have agreed upon their
verdict, and if the foreman answers in the affirmative, they
must, on being required, declare the same.” (§ 1149.) “When
the verdict given is receivable by the court, the clerk shall
record it in full upon the minutes . . . .” (§ 1164, subd. (a).)
Under these provisions, a jury cannot be discharged unless it
has rendered a verdict in open court or has declared an
inability to agree. The jury must declare in open court if it has
unanimously agreed to a verdict and, if the jury agrees on
some counts and not others, the court must accept the verdicts
upon which the jury agrees. (§ 1160; cf. People v. Anzalone
(2013) 56 Cal. 4th 545, 555 [§ 1149 part of “procedural
provisions designed to protect the right to a unanimous
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Opinion of the Court by Corrigan, J.
verdict”].) The Stone rule, allowing verdicts of acquittal for a
greater offense when the jury unanimously agrees, is fully
consistent with a statutory scheme that generally requires a
jury to announce when it agrees and requires the court to
accept verdicts.
Our statutes also reflect a strong preference for the
acceptance of acquittals. A court has discretion to clarify a
jury’s intention in the face of ambiguity. To that end, it may
“direct the jury to reconsider their verdict” if “it appears to the
Court that the jury have mistaken the law.” (§ 1161.) This
rule, however, only authorizes such an instruction if the jury’s
apparent misunderstanding underlies a conviction — not if it
underlies an acquittal. (Ibid.) Further, “[i]f the jury persist in
finding an informal verdict, from which, however, it can be
clearly understood that their intention is to find in favor of the
defendant upon the issue, it must be entered in the terms in
which it is found, and the Court must give judgment of
acquittal.” (§ 1162.) This rule, too, is asymmetrical. Even if
the jury renders an informal verdict in favor of the state, “no
judgment of conviction can be given unless the jury expressly
find against the defendant upon the issue, or judgment is given
against him on a special verdict.” (Ibid.) Thus, unlike a
judgment of conviction, “a jury verdict of acquittal need not be
in any particular form. [Citation.] The jury may render its
verdict in any manner that unmistakably manifests its intent.
The touchstone of a jury verdict of acquittal is the jury’s
manifestation of a definite and final intent to acquit of the
offense.” (Bigelow v. Superior Court (1989) 208 Cal. App. 3d
1127, 1134.) The Stone rule simply provides a mechanism by
which a jury may formally render an acquittal verdict on a
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Opinion of the Court by Corrigan, J.
greater offense, providing clarity to what otherwise may be
considered an informal verdict of acquittal.
Nothing in Blueford’s reasoning calls Stone’s analysis
into question. As discussed, Blueford raised two primary
concerns. First, Blueford suggested that a foreperson’s report
“was not a final resolution of anything” because “[t]he fact that
deliberations continued after the report deprives that report of
the finality necessary to constitute an acquittal on the murder
offenses.” (Blueford, supra, 566 U.S. at p. 606.) However, if,
under the Stone rule, a jury is given verdict forms and given
the option of rendering a unanimous verdict consistent with
the foreperson’s report, such a formalized verdict would be a
final resolution of the issue. Second, Blueford observed that
the high court has “never required a trial court, before
declaring a mistrial because of a hung jury, to consider any
particular means of breaking the impasse . . . .” (Id. at p. 609.)
However, in the Stone scenario, the jury has unanimously
acquitted a defendant of a greater offense and it is at an
“impasse” only as to which of several lesser offenses may have
been committed. Accepting a unanimous, final verdict on the
former has nothing to do with breaking an impasse on the
latter, which can be retried.
The People observe that some states have declined to
require the acceptance of partial verdicts under their state
double jeopardy provisions for fear of jury coercion. For
example, one court suggested that “[i]nquiry concerning partial
verdicts on lesser included offenses, no matter how carefully
phrased and delivered, carries a significant potential for
coercion,” and that “[t]here is simply too great a risk that such
a verdict would merely be the product of one hasty, final
attempt to satisfy the judge’s apparent desire for some form of
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Opinion of the Court by Corrigan, J.
decision on the case.” (Commonwealth v. Roth (Mass. 2002)
776 N.E.2d 437, 447, 448; see People v. Richardson (Colo. 2008)
184 P.3d 755, 763-764.)
We have clarified that “[a]bsent some indication of
deadlock only on an uncharged lesser included offense, the
suggested procedures in Stone do not come into play.” (People
v. Marshall (1996) 13 Cal. 4th 799, 826.) The court has no duty
to inquire as to the possibility of a partial verdict unless the
jury has given some affirmative indication that it has acquitted
on a greater offense but deadlocked only on a lesser offense.
(See id. at pp. 826-827; People v. McDougal (2003) 109
Cal. App. 4th 571, 579-580.) We reject the People’s suggestion
that an inquiry in that circumstance is necessarily coercive. In
the face of the jury’s own report, an inquiry merely allows the
court to clarify whether the jury has actually reached a final
decision on a greater offense or whether further deliberations
may prove fruitful. It is within the court’s sound discretion
whether the circumstances warrant further inquiry and,
thereafter, the presentation of additional verdict forms. (See
Kurtzman, supra, 46 Cal.3d at pp. 331-332; Stone, supra, 31
Cal.3d at pp. 519-520.)
C. The Court Improperly Declared a Mistrial as to First
Degree Murder
“The determination whether there is a reasonable
probability of agreement rests in the sound discretion of the
trial court, based on consideration of all the factors before it.”
(Halvorsen, supra, 42 Cal.4th at p. 426.) Here, there was an
indication that the jury agreed defendant was not guilty of first
degree murder. On three separate occasions over two court
days, the jury foreperson reported that jurors were split
between second degree murder, voluntary manslaughter, and a
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Opinion of the Court by Corrigan, J.
not guilty verdict. The foreperson said the jury had “ruled out”
first degree murder and had “worked down to voluntary
manslaughter, but there’s still a couple that are still stuck on
second degree.” The next day, the foreperson gave a numerical
split of one vote for second degree murder, two for voluntary
manslaughter and nine for an acquittal. After further
deliberations, the foreperson confirmed the split had not
changed, and the court discharged the jury. That action was
premature and unsupported by legal necessity.
Once a case has been given over to the jury’s
consideration, courts have been repeatedly cautioned to refrain
from inquiry or conduct that might invade the jury’s province
or improperly influence their deliberations. (Cf. People v.
Gainer (1977) 19 Cal. 3d 835, 842 [disapproving “ ‘dynamite
charge’ ” that some jurors should reconsider their position in
light of the majority view], disapproved on another ground in
People v. Valdez (2012) 55 Cal. 4th 82, 163.) However, when a
foreperson or any juror alerts the court that the panel has
unanimously resolved a count, the court must act, but with
care. Such a report by any juror may merely reflect his or her
impressions, gleaned from discussions. (See Blueford, supra,
566 U.S. at p. 606.) There is a reason we have statutes that
formalize the receipt of a verdict, affirmation by the entire
panel, and polling before the verdict is recorded. (See
Carbajal, supra, 56 Cal.4th at pp. 530-531; §§ 1147, 1149,
1161, 1163, 1164, subd. (a).) Standardized instructions provide
a framework for securing a formal response from the jury to
facilitate receipt of partial verdicts. (See CALCRIM Nos. 640-
643, 3517-3519.)
Courts should be mindful of section 1164, subdivision (b),
which expressly requires that “[n]o jury shall be discharged
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Opinion of the Court by Corrigan, J.
until the court has verified on the record that the jury has
either reached a verdict or has formally declared its inability to
reach a verdict on all issues before it, including, but not limited
to, the degree of the crime or crimes charged . . . .” The court
failed to do so here with respect to first degree murder.
Defendant may not be retried for first degree murder but
may be retried on the lesser included offenses of second degree
murder and voluntary manslaughter.9 As Stone reasoned, an
acquittal of a greater offense “does not bar a retrial for an
offense necessarily included therein on which the jury is
unable to agree, regardless of whether the lesser included
offense is charged in a separate count.” (Stone, supra, 31
Cal.3d at p. 522.) The jury’s reported numerical split reflected
it was deadlocked as to second degree murder and voluntary
manslaughter. After two reports of a deadlock, the court
instructed the jury to continue deliberating, but the jury
remained at an impasse. The court acted well within its
discretion by concluding no reasonable probability of
agreement existed as to these counts. (See Halvorsen, supra,
42 Cal.4th at p. 426.)
9
Contrary to the dissent’s suggestion, our conclusion does
not depend on a finding that the foreperson’s comments
regarding the jury’s numerical split constituted “an implied
verdict” that should be “given effect as such.” (Dis. opn., post,
at p. 12.) The foreperson’s statements reflected the jury had
come to a unanimous decision on first degree murder and,
therefore, was not deadlocked on that charge, thus rendering
the trial court’s declaration of a mistrial premature and
outside the normal rule allowing “retrial following discharge of
a jury that has been unable to agree on a verdict.” (Fields,
supra, 13 Cal.4th at p. 300.)
25
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Opinion of the Court by Corrigan, J.
III. DISPOSITION
The Court of Appeal’s judgment is affirmed.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
26
PEOPLE v. ARANDA
S214116
Dissenting Opinion by Justice Chin
I dissent. Because the first jury was unable to reach a
verdict, I would hold that defendant may be retried for first
degree murder.
A. Introduction
In Stone v. Superior Court (1982) 31 Cal. 3d 503 (Stone), a
murder case, the jury was deadlocked. The foreperson
described the state of the deliberations as being no votes for
guilty of murder, some votes for guilty of voluntary
manslaughter, some votes for guilty of involuntary
manslaughter, and some votes for acquittal. This court held,
over dissents from Justices Richardson and Kaus, that, under
the circumstances, the trial court was required to take a
partial verdict of not guilty of murder. It limited any retrial to
manslaughter.
The Stone court believed the double jeopardy clauses of
the Fifth Amendment to the United States Constitution and
article I, section 15, of the California Constitution compelled
this conclusion. It relied heavily, although not exclusively, on
United States Supreme Court decisions including, above all,
Green v. United States (1957) 355 U.S. 184. (Stone, supra, 31
Cal.3d at pp. 515-518.) It did not indicate which constitution it
believed compelled this conclusion, citing both constitutional
provisions and state and federal decisions interchangeably. As
the majority correctly notes, Stone’s “discussion of both federal
PEOPLE v. ARANDA
Chin, J., dissenting
and state authorities largely assumed the two clauses were
coextensive, at least as to this issue. (See Stone, at p. 516
[referencing ‘the double jeopardy clause’ without
differentiation].)” (Maj. opn., ante, at p. 10.)
This case presents the question of whether Stone’s
assumption that the two double jeopardy clauses are
coextensive as to this issue was correct. In Blueford v.
Arkansas (2012) 566 U.S. 599 (Blueford), also a murder case,
the United States Supreme Court interpreted the federal
double jeopardy clause differently than did the Stone court.
Blueford involved circumstances comparable to what occurred
in Stone and in this case. There, “[b]efore the jury concluded
deliberations in this case, it reported that it was unanimous
against guilt on charges of capital murder and first-degree
murder, was deadlocked on manslaughter, and had not voted
on negligent homicide.” (Blueford, at p. 601.) Defense counsel
asked the trial court to permit the jury to return a partial
verdict of not guilty on the charges on which it had reached a
verdict. The trial court declined to do so. “To allow for a
partial verdict, the court explained, would be ‘like changing
horses in the middle of the stream,’ given that the jury had
already received instructions and verdict forms.” (Id. at p.
604.) Contrary to what this court held in Stone, the high court
held that the federal double jeopardy clause did not require the
court to take a partial verdict of acquittal in those
circumstances.
The Blueford court explained that it had “never required
a trial court, before declaring a mistrial because of a hung jury,
to consider any particular means of breaking the impasse — let
alone to consider giving the jury new options for a verdict.”
(Blueford, supra, 566 U.S. at p. 609.) “The jury in this case did
2
PEOPLE v. ARANDA
Chin, J., dissenting
not convict Blueford of any offense, but it did not acquit him of
any either. When the jury was unable to return a verdict, the
trial court properly declared a mistrial and discharged the
jury. As a consequence, the Double Jeopardy Clause [of the
United States Constitution] does not stand in the way of a
second trial on the same offenses.” (Id. at p. 610.)
The difference between Blueford and Stone squarely
presents the question of whether the double jeopardy clauses of
the two constitutions are coextensive in this regard, as Stone
had assumed. If so, we should follow Blueford’s subsequent
interpretation of the federal clause. But the majority does not
do so. Instead, it rejects Stone’s assumption and interprets
California’s constitutional double jeopardy clause differently
than the federal clause.
This case presents a close question, and the majority
makes a credible argument. As it notes, we may interpret, and
occasionally have interpreted, California’s double jeopardy
clause differently than the federal equivalent.
But I would not do so here. Contrary to the majority, I
would conclude that (1) statements by the jury foreperson
regarding the state of the deliberations at any given time do
not constitute a formal jury verdict and should not be treated
as one; and (2) just as, long after Stone, we prohibited partial
verdicts of conviction (People v. Fields (1996) 13 Cal. 4th 289;
see post, pt. C.), we should follow the majority rule among the
states and prohibit partial verdicts of acquittal. At the least,
we should not require partial verdicts of acquittal.
B. Background
The majority accurately recites the factual and
procedural background. (Maj. opn., ante, at pp. 1-4.) Critical
3
PEOPLE v. ARANDA
Chin, J., dissenting
to this issue, in reporting that the jury had reached a
stalemate, the foreperson explained that the jury had
“ ‘basically ruled out murder in the first degree,’ ” but it was
hung on lesser included charges. (Maj. opn., ante, at p. 2; but
cf. id. at p. 24 [truncating the quoted language to “the jury had
‘ruled out’ first degree murder”].) When defense counsel asked
the trial court to permit the jury to return a partial verdict of
not guilty of first degree murder, the court declined, stating
that it did not “ ‘want to change horses in midstream.’ ” (Maj.
opn., ante, at p. 3.) When it became clear the jury was
deadlocked, the court declared a mistrial. (Ibid.)
C. Discussion
We must decide between two conflicting views: (1) the
view that what the jury foreperson says about the state of the
deliberations should not be treated as a verdict, and the trial
court should not take partial verdicts of acquittal (the view in
Blueford, supra, 566 U.S. 599, the majority view among the
states, and essentially the view taken in the dissents by
Justices Richardson and Kaus in Stone, supra, 31 Cal. 3d 503);
and (2) the view that the trial court should treat the
foreperson’s description of the state of deliberations as the
equivalent of a verdict and take a partial verdict of acquittal
(the Stone view and the minority view among the states).
The majority is correct that Blueford, supra, 566 U.S.
599, is not binding on this court. This court may interpret
California’s own constitutional double jeopardy clause more
favorably to criminal defendants than the double jeopardy
clause under the United States Constitution. The question is
whether we should do so in this instance.
4
PEOPLE v. ARANDA
Chin, J., dissenting
Before I get to the constitutional question, I note that the
majority relies in part on the circumstance that the Stone court
found a statutory basis for its conclusion. (Maj. opn., ante, at
pp. 6, 13-17.) Stone did, indeed, cite Penal Code provisions to
bolster its conclusion. (Stone, supra, 31 Cal.3d at pp. 517-518.)
But the court believed its holding was constitutionally
compelled. It simply interpreted the Penal Code the way it did
to bring it into compliance with this perceived constitutional
compulsion. The court stated that it interpreted the statutes
“[f]or the purpose of delineating the scope of the double
jeopardy protection” (Stone, at p. 517, italics added) and
reiterated its holding that “the trial court is constitutionally
obligated to afford the jury an opportunity to render a partial
verdict of acquittal on a greater offense when the jury is
deadlocked only on an uncharged lesser included offense” (id.
at p. 519, italics added).
The statutory rationale, by itself, is not persuasive. As
the majority explains, the Stone court cited Penal Code section
954 (section 954) as supposedly permitting prosecutors to
charge all lesser included offenses as separate counts, which
would presumably permit a verdict — either conviction or
acquittal — on any or all of those counts. Thus, Stone
concluded, something similar must be permitted if the
prosecutor chooses to charge all included offenses in a single
count. The majority here describes this as a “fairness
rationale.” (Maj. opn., ante, at p. 14.)
The Stone court apparently envisaged a scenario in
which the prosecution might charge a single homicide in four
counts: first degree murder, second degree murder, voluntary
manslaughter, and involuntary manslaughter. If so charged,
the jury would have a smorgasbord of options: guilty or not
5
PEOPLE v. ARANDA
Chin, J., dissenting
guilty of any or all of the counts. That scenario would permit a
defendant to be convicted on all four counts, thus receiving four
felony homicide-based convictions for the same homicide. It is
a truly bizarre scenario. But it is artificial.
Section 954 permits, in specified circumstances, the
charging of multiple crimes, including “different statements of
the same offense,” and conviction “of any number of the
offenses charged.” But, despite section 954’s seemingly all-
inclusive language, we have held that a defendant may not be
convicted of both a greater and a lesser included offense. “In
California, a single act or course of conduct by a defendant can
lead to convictions ‘of any number of the offenses charged.’
(§ 954, italics added; [citation].) But a judicially created
exception to this rule prohibits multiple convictions based on
necessarily included offenses.” (People v. Montoya (2004) 33
Cal. 4th 1031, 1034; accord, People v. Sanders (2012) 55 Cal. 4th
731, 736; People v. Pearson (1986) 42 Cal. 3d 351, 355.)
Because section 954 refers both to charging and
conviction, no reason exists to interpret the section artificially
as prohibiting conviction of lesser included offenses but
permitting charging of the same included offenses, and then to
use that interpretation to conclude that partial verdicts of
acquittal are constitutionally mandated. Charging a greater
offense permits conviction of all lesser included offenses. (Pen.
Code, § 1159; see maj. opn., ante, at p. 16.) Thus, in effect,
charging the greater offense also charges all lesser included
offenses. Our interpretation of section 954 should be
consistent. The section simply does not govern lesser included
offenses.
6
PEOPLE v. ARANDA
Chin, J., dissenting
Moreover, after Stone, we implicitly abandoned this so-
called fairness rationale. In People v. Fields, supra, 13 Cal. 4th
289, we interpreted provisions of the Penal Code as prohibiting
partial verdicts of conviction. For example, we made clear that
if the jury unanimously agrees a defendant is guilty at least of
second degree murder but is deadlocked on first degree
murder, the court may not take a partial verdict of guilty of
second degree murder; such a verdict would preclude retrial of
the first degree murder charge, and thus not be a partial
verdict. (Fields, at pp. 311-312.) A procedure permitting a
partial verdict of guilt would work the same way a procedure
permitting a partial verdict of acquittal is supposed to work. If
the jury unanimously found the defendant was guilty of a
lesser offense (for example, second degree murder), but was
hopelessly deadlocked on the greater offense (for example, first
degree murder), the trial court could take a verdict of guilty of
second degree murder and declare a mistrial regarding first
degree murder. At retrial, the jury would decide only whether
the murder was of the first or second degree. This procedure
would be exactly as clear (or murky) as partial verdicts of
acquittal. No reason exists to require the one and prohibit the
other. The same fairness rationale that, the Stone court held,
mandated the taking of partial verdicts of acquittal should
have mandated the taking of partial verdicts of conviction. But
Fields concluded otherwise.
The majority also cites another statute, apparently in
support of Stone’s rule, specifically, Penal Code section 1164,
subdivision (b), which provides that “[n]o jury shall be
discharged until the court has verified on the record that the
jury has either reached a verdict or has formally declared its
inability to reach a verdict on all issues before it, including, but
7
PEOPLE v. ARANDA
Chin, J., dissenting
not limited to, the degree of the crime or crimes charged . . . .”
(Italics added; see maj. opn., ante, at p. 20.) This statute does
not support the Stone rule. The jury did indicate its inability
to reach a verdict on all issues. It could not decide several
issues, including whether defendant was guilty of anything
and, if so, exactly what. Section 1164 neither permits nor
requires partial verdicts of acquittal, just as it neither permits
nor requires partial verdicts of conviction.
For these reasons, California’s Penal Code does not
supply the answer to the question presented here. I recognize
that this circumstance does not mean we must abandon the
Stone rule. As Stone itself said, “we remain free to delineate a
higher level of protection under article I, section 15 . . . , of the
California Constitution.” (Stone, supra, 31 Cal.3d at p. 510.)
But it does mean we have to decide the constitutional question,
which Stone did not resolve. I now turn to that question.
The Fifth Amendment to the United States Constitution
provides, as relevant, “nor shall any person be subject for the
same offense to be twice put in jeopardy of life or limb.” Article
I, section 15 of California’s Constitution provides, as relevant,
“Persons may not twice be put in jeopardy for the same
offense . . . .” “The double jeopardy clause in the federal
Constitution, as we have noted, uses ‘words very similar’ to
California’s.” (People v. Statum (2002) 28 Cal. 4th 682, 693.)
“We have long emphasized that there must be cogent reasons
for a departure from a construction placed on a similar
constitutional provision by the United States Supreme Court.”
(East Bay Asian Local Development Corp. v. State of California
(2000) 24 Cal. 4th 693, 719.) This requirement of “ ‘ “cogent
reasons” ’ ” applies to the specific question of whether we
should interpret our state constitutional double jeopardy
8
PEOPLE v. ARANDA
Chin, J., dissenting
clause differently than the similar federal constitutional
clause. (Statum, at p. 693.)
No cogent reasons exist to depart from the United States
Supreme Court’s interpretation of the federal double jeopardy
clause. Indeed, strong reasons exist not to do so. As I will
explain, most opinions from other states that have considered
this question, especially the more recent ones, are consistent
with Blueford. We should join the mainstream and adopt the
majority view.
First, I note that there was no history, or even hint, of
anything like the Stone rule in California before Stone itself.
Far from it. In People v. Griffin (1967) 66 Cal. 2d 459 (Griffin),
the defendant appealed a first degree murder conviction and
death judgment following a third trial. “The jury at the second
trial was discharged after failing to reach a unanimous verdict,
and a mistrial was declared. [Citations.] After the jury was
discharged, the foreman disclosed in open court that the jurors
had stood 10 for acquittal and 2 for guilty of second degree
murder.” (Id. at p. 464.) The defendant argued that “this fact
establishes an implied acquittal of first degree murder,” and
thus double jeopardy principles prohibited retrial. (Ibid.) This
court, in an opinion by Chief Justice Traynor that was
unanimous on this point, disagreed. It explained, “We may not
infer from the foreman’s statement that the jury had
unanimously agreed to acquit of first degree murder. There is
no reliable basis in fact for such an implication, for the jurors
had not completed their deliberations and those voting for
second degree murder may have been temporarily
compromising in an effort to reach unanimity.” (Ibid.) The
opinion does not suggest that the trial court should have
9
PEOPLE v. ARANDA
Chin, J., dissenting
permitted the jury at the second trial to return a partial
verdict of acquittal.
In finding an implied acquittal under its facts, the Stone
majority distinguished Griffin on dubious grounds that do not
significantly confront Griffin’s actual reasoning. (Stone, supra,
31 Cal.3d at pp. 512-514.) Additionally, it found itself
obligated to disapprove a Court of Appeal decision that was to
the contrary. (Id. at pp. 518-519, fn. 8.) The dissenters in
Stone cited Griffin in support of their contrary positions.
(Stone, at pp. 523-524 (dis. opn. of Richardson, J.); id. at p. 525
(dis. opn. of Kaus, J.).) Indeed, as I discuss below, opinions in
other states sometimes cite Griffin in support of the majority
view.
Just as there was no previous history supporting
independent state grounds in this regard, so is there nothing
more recent supporting the Stone view. The majority cites
more recent cases, but they merely restate what Stone held.
They provide no additional support for its finding that the
partial acquittal rule is constitutionally compelled. Indeed, we
moved in the opposite direction when we prohibited partial
verdicts of conviction in People v. Fields, supra, 13 Cal. 4th 289.
The purposes behind the constitutional guarantee
against double jeopardy provide little support for finding the
foreperson’s statements constituted an implied acquittal or the
rule requiring taking a partial verdict of acquittal. The Stone
court summarized those purposes: “ ‘[T]he State with all its
resources and power should not be allowed to make repeated
attempts to convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense and ordeal
and compelling him to live in a continuing state of anxiety and
10
PEOPLE v. ARANDA
Chin, J., dissenting
insecurity, as well as enhancing the possibility that even
though innocent he may be found guilty.’ ” (Stone, supra, 31
Cal.3d at p. 515, quoting Green v. United States, supra, 355
U.S. at pp. 187-188; accord, Blueford, supra, 566 U.S. at p.
605.)
These purposes have some, but very little, application in
this situation. Even under the majority’s holding, defendant
can be retried, albeit with second degree murder as the upper
limit. He can be subjected to the embarrassment, expense, and
ordeal of a second trial, although the embarrassment, expense,
and ordeal might be slightly lessened by the knowledge that he
could only be convicted of second degree murder. That leaves
the concern that retrial of first degree murder will enhance the
possibility that he will be found guilty of that offense even
though he might be guilty only of second degree murder. But,
given the uncertainty of what happened at the first trial, this
purpose is also weak. Providing defendant a new and fair trial,
with the burden of proof again placed on the prosecution to
prove him guilty beyond a reasonable doubt, sufficiently
guards against a wrongful conviction.
Most states that considered this question before Blueford
rejected the Stone rule. As the most recent of the pre-Blueford
cases summarizes, “Several other jurisdictions have addressed
this issue, and the majority has held that if a single charge
includes multiple degrees of offenses, the trial court may not
conduct a partial verdict inquiry as to the offenses included
within the charge. [Citing State v. Bell (Iowa 1982) 322
N.W.2d 93, 95, State v. McKay (Kan. 1975) 535 P.2d 945, 947,
People v. Hall (Ill.Ct.App. 1975) 324 N.E.2d 50, 52-53,
Commonwealth v. Roth (Mass. 2002) 776 N.E.2d 437, 450,
People v. Hickey (Mich.App. 1981) 303 N.W.2d 19, 21, State v.
11
PEOPLE v. ARANDA
Chin, J., dissenting
Booker (N.C. 1082) 293 S.E.2d 78, 80.] The minority, on the
other hand, has held that double jeopardy requires a partial
verdict of acquittal as to the greater offenses if the jury is
deadlocked only as to the lesser offenses. [Citing Stone, supra,
31 Cal. 3d 503, as well as Whiteaker v. State (Alaska Ct.App.
1991) 808 P.2d 270, 278, State v. Tate (Conn. 2001) 773 A.2d
308, 321, State v. Pugliese (N.H. 1980) 422 A.2d 1319, 1321.]”
(People v. Richardson (Colo. 2008) 184 P.3d 755, 763, fn.
omitted [adopting the majority rule], see Booker, at p. 80
[referring to the “better reasoned . . . majority rule which
requires a final verdict before there can be an implied
acquittal”].)
Of the three cases considering the question after
Blueford, two have followed Blueford and the majority rule.
(Traylor v. State (Tex.Crim.App., Nov. 7, 2018, No. PD-0969-
17) 2018 WL 5810859; State v. Alvarado (Wis.Ct.App. 2017)
903 N.W.2d 122.) One has adopted independent state grounds.
(State v. Fennell (Md. 2013) 66 A.3d 630.)
But I do not merely rely on the weight of authority. The
majority rule is the better reasoned rule.
The foreperson’s description of the state of deliberations
should not be treated as an implied verdict and given effect as
such. There was no formal verdict in accordance with
California’s statutory requirements. The majority
acknowledges that “[t]here is a reason we have statutes that
formalize the receipt of a verdict, affirmation by the entire
panel, and polling before the verdict is recorded. [Citations.]”
(Maj. opn., ante, at p. 24.) Here there was no such formality.
“ ‘[B]asically’ ” ruling something out, as the foreperson reported
occurred here (maj. opn., ante, at p. 2), is very different from
12
PEOPLE v. ARANDA
Chin, J., dissenting
rendering a formal verdict. As Justice Richardson argued in
Stone (citing Griffin, supra, 66 Cal. 2d 459), “we do not know
whether the reported votes represented a ‘temporary
compromise’ reached by any particular juror in an attempt to
reach a unanimous verdict.” (Stone, supra, 31 Cal.3d at p. 524
(dis. opn. of Richardson, J.).) The reported votes “were flash
pictures taken of jury negotiations at particular moments in
their deliberations.” (Ibid.; see id. at p. 525 (dis. opn. of Kaus,
J.) [similar].)
“The foreperson’s report was not a final resolution of
anything.” (Blueford, supra, 566 U.S. at p. 606.) “[N]othing in
the [court’s] instructions prohibits the jury from doing what
juries often do: revisit a prior vote. ‘The very object of the jury
system,’ after all, ‘is to secure unanimity by a comparison of
views, and by arguments among the jurors themselves.’
[Citation.] A single juror’s change of mind is all it takes to
require the jury to reconsider a greater offense.” (Id. at p. 608.)
I agree with the Colorado Supreme Court that “a jury’s
deliberations should not be given the legal force of a final
verdict until the end result is expressed on a verdict form
returned in open court as required by Colorado law [as well as
California law; see maj. opn., ante, at p. 24]. [Citations.] . . . In
short, the jury’s informal and non-final discussions and
decisions concerning the first- and second-degree murder
charges against Richardson are not reliable.” (People v.
Richardson, supra, 184 P.3d at p. 764.) Or, as the
Massachusetts Supreme Judicial Court explained when it
adopted the majority view, “until there is a final verdict on the
entire charge, one cannot be certain whether jurors have been
proffering ‘compromise’ votes in an attempt to reach a verdict.
The most recent ‘vote’ immediately prior to reporting deadlock
13
PEOPLE v. ARANDA
Chin, J., dissenting
may well be tentative, a failed experiment in compromise, not
a true expression of each juror’s assessment of the case.
[Citations.] After the jury have reported that deadlock, a
judge’s request that the jury divulge the substance of their
‘final’ vote may force the jury to report as ‘final’ some votes
that were not intended to be ‘final’ unless they resolved the
entire case.” (Commonwealth v. Roth, supra, 776 N.E.2d at pp.
448-449, fn. omitted.)
Significantly, some of the cases adopting the majority
view have cited our opinion in Griffin, supra, 66 Cal. 2d 459, to
support that view. (State v. Bell, supra, 322 N.W.2d at pp. 95-
96 [attempting to distinguish Stone but adding, “to the extent
Stone may be inconsistent with Griffin, we believe Griffin
expresses the better view”]; People v. Hickey, supra, 303
N.W.2d at p. 21; State v. Booker, supra, 293 S.E.2d at pp. 80-
81.)
I also see no cogent reason to adopt on independent state
grounds a rule requiring the jury to return a partial verdict of
acquittal in these circumstances. The trial court in both this
case and Blueford were correctly reluctant to “change horses in
midstream” (this case) or to “chang[e] horses in the middle of
the stream” (Blueford, supra, 566 U.S. at p. 604).
The Massachusetts Supreme Judicial Court has firmly
held that a trial court should not take partial verdicts from a
deadlocked jury. In Commonwealth v. Roth, supra, 776
N.W.2d 437, the trial judge took partial verdicts on lesser
included offenses. The state high court held the judge erred.
“[A] judge’s inquiry concerning possible partial verdicts
improperly intrudes on the jury’s function, and we remain of
the view that the ostensible benefits to be gained by such a
14
PEOPLE v. ARANDA
Chin, J., dissenting
procedure are outweighed by its risks.” (Id. at p. 446.)
“Inquiry concerning partial verdicts on lesser included
offenses, no matter how carefully phrased and delivered,
carries a significant potential for coercion. We have previously
recognized that deadlocked juries are particularly susceptible
to coercion. [Citations.] . . . Where the jurors have twice
reported themselves deadlocked, and have already heard [a
charge urging the jury to continue deliberating], a judge’s
inquiry concerning partial verdicts cannot avoid
communicating to the jury the judge’s desire to salvage
something from the trial. However the inquiry is articulated or
explained, the import of the inquiry is unmistakable: ‘Can’t
you at least decide a part of the case?’ The inquiry, by its
nature, plays on the deadlocked jurors’ natural sense of
frustration, disappointment, and failure. The jurors are
confronted with the request, and asked to absorb its inherent
complexity, at the worst possible time, when they are tired,
anxious to be discharged, and perhaps angry at fellow jurors
whom they blame for failing to reach agreement. While
technically inquiring only as to what the jurors have already
agreed on, the request for partial verdicts broken down by
lesser included offenses implicitly suggests that the jurors
should try just a little bit harder to come back with at least a
partial decision to show for all of their efforts.” (Id. at pp. 447-
448.)
The Roth court found “too great a risk that such a verdict
would merely be the product of one hasty, final attempt to
satisfy the judge’s apparent desire for some form of decision on
the case.” (Commonwealth v. Roth, supra, 776 N.E.2d at p.
448.) “Such inquiries of the jury may succeed in extracting a
partial verdict, but we could not have confidence that that
15
PEOPLE v. ARANDA
Chin, J., dissenting
partial verdict was the product of a thoughtful and thorough
deliberation process.” (Id. at p. 449.) Accordingly, the court
“conclude[d] that judges should not initiate any inquiry into
partial verdicts premised on lesser included offenses within a
single complaint or count of an indictment. In our view, the
risks of juror coercion are too high, and the reliability of any
such partial verdict returned is too low, to warrant such an
approach to salvaging some partial result from a deadlocked
jury. We remain of the view that such inquiries ‘constitute an
unwarranted and unwise intrusion into the province of the
jury.’ ” (Id. at p. 450.)
The Colorado Supreme Court quoted at length from, and
agreed with, the Roth decision in a case in which the jury
unanimously agreed the defendant was not guilty of murder
but was deadlocked on the lesser included offenses of
manslaughter and criminally negligent homicide. It found “the
Roth court’s reasoning — including its concerns about juror
coercion and compromise — persuasive.” (People v.
Richardson, supra, 184 P.3d at p. 763.) I do too.
Indeed, the coercive effect identified in Roth and
Richardson is even greater under California law as it now
stands. After Stone, we prohibited partial verdicts of
conviction. (People v. Fields, supra, 13 Cal. 4th 289.) I see no
compelling, or even cogent, reason for prohibiting partial
verdicts of guilt while requiring, in some circumstances, partial
verdicts of acquittal. Under the majority holding, the coercive
effect can only go one way — towards a not guilty verdict. The
coercive message a deadlocked jury will receive in these
circumstances is that the court really wants to salvage
something from the trial, and that something can only be an
acquittal, not a conviction.
16
PEOPLE v. ARANDA
Chin, J., dissenting
We should not interpret our state constitutional double
jeopardy clause differently than the similarly worded federal
counterpart to compel this coercive message. The first jury
resolved nothing. Providing defendant with a new,
unrestricted, jury trial, once again placing the burden of proof
on the prosecution beyond a reasonable doubt, sufficiently
protects defendant’s constitutional rights.
The majority invokes what it calls a “fairness rationale”
for the Stone rule it embraces. (Maj. opn., ante, at p. 14.) I
would invoke a different fairness rationale. The rule should be
consistent. Just as the trial court cannot take a partial verdict
of guilt, so too it should not take a partial verdict of acquittal.
For these reasons, I would find a legal necessity existed
for discharging the first jury. (Maj. opn., ante, at pp. 5-6.)
Defendant should be retried without restriction.
CHIN, J.
17
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Aranda
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 219 Cal. App. 4th 764
Rehearing Granted
__________________________________________________________________________________
Opinion No. S214116
Date Filed: April 4, 2019
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: Michele D. Levine and Helios (Joe) Hernandez
__________________________________________________________________________________
Counsel:
Paul E. Zellerbach, District Attorney, Jeff Van Wagenen, Assistant District Attorney, Elaina Gambera
Bentley and Kelli M. Catlett, Deputy District Attorneys, for Plaintiff and Appellant.
Mitchell Keiter as Amicus Curiae on behalf of Plaintiff and Appellant.
Blumenthal Law Offices, Virginia M. Blumenthal and Brent F. Romney for Defendant and Respondent.
Ronald L. Brown, Public Defender (Los Angeles), Albert J. Menaster and Mark Harvis, Deputy Public
Defenders, as Amici Curiae on behalf of Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Kelli M. Catlett
Deputy District Attorney
3960 Orange Street
Riverside, CA 92501
(951) 955-5400
Virginia M. Blumenthal
Blumenthal Law Offices
3993 Market Street
Riverside, CA 92501
(951) 682-5110