People v. Stafford CA2/3

Filed 1/30/23 P. v. Stafford CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B322534
Plaintiff and Respondent, Stanislaus County
Super. Ct. No. 1466458-02
v.
ORDER MODIFYING OPINION
ISAIAH JAMES STAFFORD, [NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed on January 30, 2023, be modified
as follows:
On page 1, the Judge’s name, Ricardo Cardova, should be corrected
to read Ricardo Cordova.
There is no change in the judgment.
________________________________________________________________________
EGERTON, J. LAVIN, Acting P. J. RICHARDSON (ANNE K.), J.
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
Filed 1/30/23 P. v. Stafford CA2/3 (unmodifed opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B322534
Plaintiff and Respondent, Stanislaus County
Super. Ct. No. 1466458-02
v.
ISAIAH JAMES STAFFORD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Stanislaus County. Ricardo Cardova, Judge. Affirmed.
Deborah L. Hawkins, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Louis M. Vasquez, Lewis A. Martinez
and William K. Kim, Deputy Attorneys General, for Plaintiff
and Respondent.
_________________________
The People charged Isaiah James Stafford with murder,
assault, and attempted robbery. A jury convicted Stafford
of assault, found he did not commit murder under an express
malice theory, and was unable to agree unanimously whether
he committed attempted robbery and murder under a felony
murder theory. Stafford repeatedly moved for a mistrial, which
the court eventually granted. The People retried the case under
the felony murder theory, and the second jury convicted Stafford
of first degree murder and attempted robbery. On appeal,
Stafford contends double jeopardy principles barred the People
from retrying the murder charge. He also argues he received
ineffective assistance of counsel. We affirm.
FACTS AND PROCEDURAL BACKGROUND
1. Background
Because the facts of the underlying offenses are not
relevant to this appeal, we summarize them only briefly.
On the afternoon of December 11, 2013, Luisa Riley went
to a restaurant to meet up with Stafford, whom she was dating.
Stafford was not at the restaurant, so Riley walked around the
area. She found Stafford sometime later in a nearby parking lot.
Riley asked Stafford what he was doing in the parking lot.
Stafford replied he was going to buy “weed” and “do a come up,”
which Riley understood to mean he was going to steal something.
Stafford had a gun. Lamarr Oldham, whom Stafford claimed was
his cousin, was standing by himself next to a nearby dumpster.
Roy Randall and Damien Villavicencio drove up in a
car and parked near where Riley and Stafford were standing.
Stafford got into the backseat of the car. He left the door open
and had his feet outside the car.
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Stafford asked the men to show him the “weed.” One
of the men responded by asking Stafford to show him the money.
Oldham slowly moved toward the car from a crouched position,
and Randall and Villavicencio looked in his direction. Randall
tried to drive away, but he crashed into a curb.
Stafford started shooting his gun, and Riley heard three
gunshots coming from his direction. Oldham, who was now
right beside Riley, started firing his gun at the car as well.
Stafford, Oldham, and Riley ran to Oldham’s apartment,
which was in a nearby complex. Police arrested them later
that evening.
Randall suffered a gunshot wound to his forearm.
Villavicencio suffered a gunshot wound to his chest, which
was fatal.
The People charged Stafford with the first degree murder
of Villavicencio (Pen. Code, § 187, subd. (a); count 1),1 assault
with a firearm on Randall (§ 245, subd. (a)(2); count 2), and
two counts of attempted robbery (§§ 211, 664; counts 3, 4).
The People also alleged various firearm enhancements.
2. The first trial
The People tried the case to a jury in 2019. At the close
of evidence, the court instructed the jury that Stafford “has
been prosecuted for murder under two theories: One, malice
aforethought; and two, felony murder. Each theory of murder
has different requirements . . . .”
The court gave the jury separate sets of verdict forms for
“FIRST DEGREE MURDER . . . as charged in Count I,” and
“FELONY MURDER . . . as charged in Count I.” The court also
provided the jurors with sets of verdict forms for second degree
1 Statutory references are to the Penal Code.
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murder, involuntary manslaughter, attempted robbery, and
several other lesser included offenses.
After deliberating for less than a day, the foreperson
informed the court the jury was not able to reach verdicts on
“the first [count] of felony murder” as well as the attempted
robbery counts. The foreperson handed the verdict forms
to the court, noting he had “signed the forms of the verdicts
that we all agree on, and we have left blank the ones that we
have not agreed on.”
The court met with counsel in chambers and told them
the jurors “did not sign the felony murder verdict forms so that
is what they are hung on. They did sign with respect to malice
verdict, found him not guilty of first-degree murder, not guilty of
second-degree murder, not guilty of involuntary manslaughter.”
The prosecutor remarked that the verdicts made sense because
the “lesser[ ] [offenses] were included under [the] malice murder”
theory, not the felony murder theory. The court noted the jury
could still convict Stafford under the felony murder theory.
Defense counsel stated he needed to research the issue.
After returning to the courtroom, the court instructed
the jury to continue its deliberations. Stafford then moved “for
a mistrial on the felony murder theory,” which the prosecutor
opposed. The court denied the motion.
About 45 minutes later, the jury indicated it had not
made any progress. Stafford again moved for a mistrial. The
prosecutor opposed the motion, arguing that the jury could still
reach a verdict on the felony murder theory. The court denied
Stafford’s motion.
The court read the jurors CALCRIM No. 3551 and
instructed them to continue their deliberations. Stafford made
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a third motion for mistrial, arguing it was clear the jury was
deadlocked on felony murder. The court again denied the motion.
Sometime later, the jury sent the court a note asking
whether it could find Stafford guilty of felony murder without
finding him guilty of attempted robbery. The court responded
that the jury must find Stafford guilty of attempted robbery
to find him guilty of felony murder.
The jury returned to the courtroom a few minutes after
receiving the court’s response. The foreperson informed the
court the jury was at an “impasse and will not be able to reach
a unanimous decision.” The court told the jurors to continue
deliberating the following day.
After the jurors left for the day, Stafford asked the court
to record the not guilty verdicts and declare a mistrial. The court
responded that it would record the verdicts the next day, and
the jury would continue to deliberate only on felony murder and
the attempted robbery counts. The court again denied Stafford’s
mistrial motion.
After deliberating for several more hours the next day,
the jury informed the court it still could not come to an
agreement on the outstanding counts. The court asked the
foreperson: “It was . . . one of the theories under Count I, and
then Counts III and IV that the jury wasn’t able to decide on;
is that right?” The foreperson responded, “Correct.”
The jury returned the verdict forms to the court. The
foreperson signed “not guilty” forms for “FIRST DEGREE
MURDER . . . as charged in Count I,” “SECOND DEGREE
MURDER . . . as charged in Count I,” and “INVOLUNTARY
MANSLAUGHTER . . . a lesser included offense to Count I.”
The foreperson also signed a “guilty” verdict form on count 2
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(assault with a firearm), which found true the allegation that
Stafford personally used a firearm. The foreperson did not
sign any verdict forms for “FELONY MURDER . . . as charged
in Count I” or the attempted robbery counts.
The court asked the foreperson for the vote split “with
respect to Count I, the felony murder count,” as well as the
attempted robbery counts. The foreperson responded that the
jury was split 11 to 1, with the majority of jurors voting to convict
on all three counts.
After the clerk read the verdicts, the court remarked:
“With respect to the other theory for Count I, which was felony
murder, I will declare a mistrial with respect to that particular
count since it’s clear to the Court that further deliberation
would not assist the jury in reaching a verdict based on the
representations of the foreperson.” The court also declared
a mistrial on the attempted robbery counts. The court set
a hearing to reset the jury trial, and Stafford waived time.
3. The second trial
The People tried the murder and attempted robbery counts
to a new jury in January 2020. After the parties rested, the court
instructed the jury that the People charged Stafford with murder
“under a theory of first degree felony murder.” It did not instruct
the jury on any other theories of murder.
The jury convicted Stafford of murder and two counts
of attempted robbery. It also found true the allegations that
Stafford aided and abetted the murder while “engaged in the
commission of the crime of attempted robbery,” and “personally
and intentionally discharge[d] a firearm and proximately
cause[d] great bodily injury to another person” during the
offenses.
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The court sentenced Stafford to an aggregate term
of five years plus 50 years to life consisting of the following:
25 years to life for the murder (count 1), 25 years to life for
the firearm enhancement on the murder count, the low term
of two years for the assault (count 2), and the low term of
three years for the firearm enhancement on the assault count.
The court imposed two consecutive sentences of two years plus
25 years to life on the attempted robbery counts (counts 3 & 4),
which it stayed under section 654.
Stafford timely appealed.
DISCUSSION
1. Double jeopardy principles did not bar the People
from retrying Stafford for murder
Stafford argues his conviction for murder violates the
double jeopardy clauses found in the federal and California
constitutions. Specifically, he contends the jury in the first trial
acquitted him of murder, which precluded the People from
prosecuting him for murder in the second trial.
At the outset, we agree with the Attorney General that
Stafford forfeited this issue by failing to raise it below. A
defendant must affirmatively raise a claim of double jeopardy
in the trial court to preserve the issue for appeal. (People v.
Gurule (2002) 28 Cal.4th 557, 646.) Stafford did not enter a
once-in-jeopardy plea2 or otherwise raise the double jeopardy
issue in the trial court. As a result, he has forfeited the issue
2 “In order to present a double jeopardy defense at trial,
a defendant must first have entered a special plea of ‘former
acquittal,’ ‘former conviction’ or ‘once in jeopardy.’ ” (People v.
Bell (2015) 241 Cal.App.4th 315, 339; see §§ 1016, subds. (4), (5),
1020.)
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on appeal. Nevertheless, we will consider the merits of his
arguments in order to forestall his derivative ineffective
assistance of counsel claim.
The double jeopardy clauses of the Fifth Amendment to
the United States Constitution and article I, section 15, of the
California Constitution provide that no person may be tried
more than once for the same offense. (People v. Aranda (2019)
6 Cal.5th 1077, 1083 (Aranda).) The double jeopardy clauses
protect against “ ‘a second prosecution for the same offense
following an acquittal or conviction . . . .’ ” (People v. Anderson
(2009) 47 Cal.4th 92, 103–104.) The double jeopardy clauses
generally do not preclude the People from retrying a defendant
if the jury fails to agree on a verdict and the court declares
a mistrial. (Aranda, at p. 1083.)
Stafford limits his double jeopardy arguments to the
murder charge. Murder is the “unlawful killing of a human
being, or a fetus, with malice aforethought.” (§ 187, subd. (a).)
Malice may be either express or implied. (§ 188, subd. (a).)
“Malice is express when there is manifested a deliberate
intention to unlawfully take away the life of a fellow creature.”
(§ 188, subd. (a)(1).) Alternatively, a defendant may be guilty
of murder under the felony murder rule, which “generally
acts as a substitute for the mental state ordinarily required
for the offense of murder.” (People v. Patterson (1989) 49 Cal.3d
615, 626, italics omitted.) The felony murder rule “makes a
killing while committing certain felonies murder without the
necessity of further examining the defendant’s mental state.”
(People v. Chun (2009) 45 Cal.4th 1172, 1182.)
The People charged Stafford with a single count of murder,
but presented alternative theories to the jury in the first trial.
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Under one theory—the malice theory—the People posited that
Stafford was guilty of murder because he killed Villavicencio
with express malice. Under the other theory—the felony murder
theory—the People posited that Stafford was guilty of murder
because Villavicencio was killed while Stafford was attempting
to rob him.
As Stafford correctly points out, malice murder and
felony murder are not separate crimes; instead, they are simply
different ways of proving the single offense of murder. (People
v. Nakahara (2003) 30 Cal.4th 705, 712.) As a result, in order
to acquit Stafford of murder, the jury in the first trial had to
find him not guilty under both of the prosecution’s theories.
The jury found Stafford did not commit express malice murder,
but it was unable to reach a unanimous decision as to whether
he committed murder under a felony murder theory. The jury,
therefore, did not acquit Stafford of murder, and the prosecution
was not barred from retrying him under the felony murder
theory. (See Aranda, supra, 6 Cal.5th at p. 1083.)
Stafford’s arguments to the contrary are premised on a
misreading of the verdict forms in the first trial. The trial court
gave the jury two sets of verdict forms for the murder charge:
one set for the express malice theory, and one set for the felony
murder theory. Hybrid verdict forms of this sort are permissible.
(See People v. Neely (1993) 6 Cal.4th 877, 898.) Unfortunately,
the verdict forms were not worded as precisely as they should
have been. Unlike the felony murder forms, the malice theory
forms did not explicitly state they were limited to a single
theory of murder; instead, they referred to the crime of murder
generally, without qualification.
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Stafford maintains that by signing the not guilty verdict
form related to the malice theory—which states the jury found
him not guilty of “MURDER . . . as charged in Count I”—the jury
in the first trial acquitted him of the crime of murder. If we were
to view this particular verdict form in isolation, we might agree.
Viewed in the context of the entire record, however, it is readily
apparent the jury did not intend to acquit Stafford of murder.
“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, accord Aranda, supra, 6 Cal.5th at p. 1093.) The jury
must unequivocally indicate an intent to acquit to preclude the
prosecution from retrying the defendant on the same charge.
(People v. Brown (2016) 247 Cal.App.4th 211, 234.)
The jury did no such thing here. To the contrary, the
foreperson repeatedly informed the court the jury could not
reach a unanimous decision as to whether Stafford was guilty
of murder under a felony murder theory. Consistent with those
representations, the jury did not complete any of the verdict
forms related to the felony murder theory. Moreover, at
Stafford’s request, the court declared a mistrial “[w]ith respect
to the [felony murder] theory for Count I,” which would have
been unnecessary and nonsensical had the jury acquitted
Stafford of murder. On this record, there is no doubt the jury
did not intend to acquit Stafford of the crime of murder, despite
the imprecise language in the malice murder verdict forms.
Indeed, even Stafford seemed to recognize this fact, as he did
not enter a once-in-jeopardy plea, object to the second trial, or
claim the jury acquitted him of murder at any point prior to
this appeal.
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Stafford suggests that, whenever a jury unanimously
rejects a theory of murder, it acts as a complete acquittal, even
if the prosecutor presented multiple theories of the offense.
He contends it would be fundamentally unfair to require jurors
to reject unanimously all theories of murder in order to acquit,
given jurors need not agree unanimously on a single theory
in order to convict. We are not persuaded. In both situations—
conviction and acquittal—the jurors must agree unanimously
on the core question submitted to them: did the defendant
commit murder. So long as at least one juror answers yes
to that question under a valid theory, the jury has not acquitted
the defendant of the offense.
Stafford also suggests his retrial was improper because
a prosecutor cannot evade double jeopardy by retrying the
defendant under a new theory following an acquittal. While
we generally agree, that is not what happened here. Instead,
the People retried Stafford under one of the theories presented
to the jury in the first trial—felony murder. The second trial,
therefore, was a continuation of the original prosecution,
rather than an entirely new one. The double jeopardy clauses
do not apply in this situation. (See Yeager v. U.S. (2009) 557
U.S. 110, 118 [retrial following a mistrial due to a hung jury is
a continuation of the initial jeopardy and therefore not barred];
People v. Williams (1987) 195 Cal.App.3d 398, 408, fn. 4 [“a
mistrial results in a mere continuation of the jeopardy, thus
prohibiting the invocation of that clause by a defendant”]; In re
Dale S. (1970) 10 Cal.App.3d 952, 956 [double jeopardy principles
do not apply where a second proceeding is a continuation of
the original proceeding].)
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2. Stafford did not receive ineffective assistance
of counsel
Stafford argues his trial counsel was constitutionally
ineffective in failing to advise him to enter a once-in-jeopardy
plea.
Under either the federal or state Constitution, the
“benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning
of the adversarial process that the [proceedings] cannot be relied
on as having produced a just result.” (Strickland v. Washington
(1984) 466 U.S. 668, 686.) To establish a claim for ineffective
assistance of counsel, a defendant must prove by a preponderance
of the evidence (1) that his lawyer’s performance was deficient
because it fell below an objective standard of reasonableness
in all the circumstances; and (2) that absent those errors,
a different outcome was reasonably probable, meaning a
probability sufficient to undermine confidence in the outcome.
(People v. Cunningham (2001) 25 Cal.4th 926, 1030.)
Stafford has not shown his lawyer’s performance was
deficient or that he suffered prejudice. As we discussed above,
double jeopardy principles did not bar the People from retrying
Stafford for murder. Defense counsel, therefore, was not required
to advise Stafford to enter a once-in-jeopardy plea, which would
have been futile. For the same reasons, Stafford has not shown
he suffered prejudice. Accordingly, his ineffective assistance
of counsel claim lacks merit.
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DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
RICHARDSON (ANNE K.), J.

Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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